Judicial Reform and Democratization

Permanent Link: http://ufdc.ufl.edu/UFE0022341/00001

Material Information

Title: Judicial Reform and Democratization Means versus Ends in Perceptions of Legal Change in Ecuador
Physical Description: 1 online resource (94 p.)
Language: english
Creator: Anda, Betty
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008


Subjects / Keywords: democracy, development, ecuador, judicial, reform
Latin American Studies -- Dissertations, Academic -- UF
Genre: Latin American Studies thesis, M.A.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: More than ever before, the democratization process as well as the future of democratic regimes in Latin America have been associated with the need to strengthen the rule of law. As a result, a regional and international movement for judicial reform (JR) in Latin America has emerged as a new development paradigm. In their efforts to empower the judiciaries and promote the rule of law in the Latin America, the reform movement proposes to strengthen the administration of justice by establishing the adversarial, prosecutorial system of Western Industrialized nations and focusing on four main legal mechanisms: judicial independence, judicial effectiveness, state accountability to the law through checks and balances, and citizens' access to justice. Although Judicial Reform is not a new development project, it has experienced an unprecedented momentum in the last decades, with the support of major international organizations and lending institutions promoting it. At present, every country in the region, except for Uruguay, has begun a process of JR, with more reforms yet to come. In this context, JR is also an attempt to modernize the Latin American judiciaries, promoting the rule of law as a tool for social, political and economic development. Nonetheless, research and assessments of the current state of judicial reform in the region have begun to question whether reforming the legal system is indeed conducive to democracy. Importantly, these concerns arise from researchers and scholars who have promoted reform efforts in different Latin American nations for various years, but who believe that a traditional analysis of judicial reform provides an incomplete assessment and insufficiently explores necessary criteria associated with development objectives. Perhaps due to a lack of communication between different disciplines in the social sciences, especially sociology and law, JR discussions have failed to acknowledge the complexity of development processes. In an effort to contribute to this subject, this project analyses JR as a development framework, focusing specifically on the assumption that JR will lead to democratization. This work is also based on my own research project conducted in Quito, Ecuador in the Summer of 2007. The results presented derive from interviews I carried out with key legal actors in the country. Drawing from vast research on JR and development in different countries in Latin America, as well as from my own research in Ecuador, I contend that strengthening the rule of law is foremost a political matter that can only be attained through long-term consensus; to succeed it must therefore be an embedded feature of a larger democratic process. In the end, my study suggests that unless the unilinear approaches and simplistic assumptions of the development processes are carefully considered, legal reform in the Americas only risks becoming another cacophonous waltz in its development path.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Betty Anda.
Thesis: Thesis (M.A.)--University of Florida, 2008.
Local: Adviser: Wood, Charles H.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022341:00001

Permanent Link: http://ufdc.ufl.edu/UFE0022341/00001

Material Information

Title: Judicial Reform and Democratization Means versus Ends in Perceptions of Legal Change in Ecuador
Physical Description: 1 online resource (94 p.)
Language: english
Creator: Anda, Betty
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008


Subjects / Keywords: democracy, development, ecuador, judicial, reform
Latin American Studies -- Dissertations, Academic -- UF
Genre: Latin American Studies thesis, M.A.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: More than ever before, the democratization process as well as the future of democratic regimes in Latin America have been associated with the need to strengthen the rule of law. As a result, a regional and international movement for judicial reform (JR) in Latin America has emerged as a new development paradigm. In their efforts to empower the judiciaries and promote the rule of law in the Latin America, the reform movement proposes to strengthen the administration of justice by establishing the adversarial, prosecutorial system of Western Industrialized nations and focusing on four main legal mechanisms: judicial independence, judicial effectiveness, state accountability to the law through checks and balances, and citizens' access to justice. Although Judicial Reform is not a new development project, it has experienced an unprecedented momentum in the last decades, with the support of major international organizations and lending institutions promoting it. At present, every country in the region, except for Uruguay, has begun a process of JR, with more reforms yet to come. In this context, JR is also an attempt to modernize the Latin American judiciaries, promoting the rule of law as a tool for social, political and economic development. Nonetheless, research and assessments of the current state of judicial reform in the region have begun to question whether reforming the legal system is indeed conducive to democracy. Importantly, these concerns arise from researchers and scholars who have promoted reform efforts in different Latin American nations for various years, but who believe that a traditional analysis of judicial reform provides an incomplete assessment and insufficiently explores necessary criteria associated with development objectives. Perhaps due to a lack of communication between different disciplines in the social sciences, especially sociology and law, JR discussions have failed to acknowledge the complexity of development processes. In an effort to contribute to this subject, this project analyses JR as a development framework, focusing specifically on the assumption that JR will lead to democratization. This work is also based on my own research project conducted in Quito, Ecuador in the Summer of 2007. The results presented derive from interviews I carried out with key legal actors in the country. Drawing from vast research on JR and development in different countries in Latin America, as well as from my own research in Ecuador, I contend that strengthening the rule of law is foremost a political matter that can only be attained through long-term consensus; to succeed it must therefore be an embedded feature of a larger democratic process. In the end, my study suggests that unless the unilinear approaches and simplistic assumptions of the development processes are carefully considered, legal reform in the Americas only risks becoming another cacophonous waltz in its development path.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Betty Anda.
Thesis: Thesis (M.A.)--University of Florida, 2008.
Local: Adviser: Wood, Charles H.

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022341:00001

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2 2008 Alexandra Anda


3 To my family, who have been far from me for so many years, but who live close to my heart every day: mami papi, what would I do without you? To my brother, for helping me to look at difficult times as something to laugh at, and to my little sister, Camila, for lightening up my life.


4 ACKNOWLEDGMENTS I want to thank m y supervisory committee: Dr Carmen Diana Deere for all the support she has offered me since I began the program, Dr. Menno Vellinga for the kindness and unconditional willingness to help me throughout th e writing process, Dr. Ottn Sols Fallas for teaching me so much during his brief passage in this institution and taking the time to participate as a committee member, and my chair, Dr. Ch arles H. Wood for the constant dedication, encouragement, and enthusiasm throughout these years. I thank all the friends who made my passage through Gainesville a memorable one, offering me unconditional support and giving me the daily dose of laughter I could ha ve never survived without. I am particularly grateful to my friend and classmate JFT, for his help during the writing process and for always believing in me. Last but not least, special thanks go to my lady fr iends who rescued me more than once and in so many ways.


5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF TABLES................................................................................................................. ..........7 LIST OF FIGURES.........................................................................................................................8 LIST OF ABBREVIATIONS.......................................................................................................... 9 ABSTRACT...................................................................................................................................10 CHAP TER 1 INTRODUCTION..................................................................................................................12 2 LATIN AMERICA PRIOR TO JUDICIAL REFORM......................................................... 18 Introduction................................................................................................................... ..........18 Historical Roots: Presidentia lism and Judiciary Control........................................................ 18 Presidentialism................................................................................................................19 Judiciary Control.............................................................................................................21 Latin American Judiciary Prior to Reform.............................................................................22 Conclusion..............................................................................................................................25 3 JUDICIAL REFORM IN LATIN AMERICA....................................................................... 26 Introduction................................................................................................................... ..........26 Reform: What It All Means....................................................................................................27 History....................................................................................................................................30 Contemporary Judicial Reform Movement............................................................................ 32 Violence and Citizen Insecurity...................................................................................... 35 Eroding Confidence in the Judiciary............................................................................... 37 Economic Development.................................................................................................. 38 Democratization and the Rule of Law............................................................................. 40 Conclusion..............................................................................................................................43 4 JUDICIAL REFORM AND DEMOCRA TIZATION: MEANS OR ENDS? ........................ 48 Introduction................................................................................................................... ..........48 Efficiency................................................................................................................................49 Access.....................................................................................................................................51 Judicial Independence.......................................................................................................... ...52 Democratization and Judicial Reform.................................................................................... 55 Conclusion..............................................................................................................................57


6 5 COUNTRY CASE STUDY: ECUADOR.............................................................................. 59 Introduction................................................................................................................... ..........59 Ecuadors Development Path................................................................................................. 61 Judicial Reform in Ecuador: Perceptions of its Legal Actors................................................. 64 Conclusions.............................................................................................................................76 6 CONCLUSIONS.................................................................................................................... 81 REFERENCES..............................................................................................................................89 BIBLIOGRAPHICAL SKETCH................................................................................................... 94


7 LIST OF TABLES Table page 3-1 Confidence in state institu tions in L atin America 2004..................................................... 463-2 Levels of satisfaction with democracy in Latin America 2004......................................... 475-1 Confidence in state institutions in Ecuador 2004.............................................................. 78


8 LIST OF FIGURES Figure page 5-1 Satisfaction with democracy in Ecuador 2004................................................................... 795-2 Country governed for powerful interests in Ecuador 2004................................................ 80


9 LIST OF ABBREVIATIONS CAFT A Central American free trade agreement IDB Inter-American development bank INLAUD Institute for the prevention of crime and treatment of offenders IMF International monetary fund JR Judicial reform JRM Judicial reform movement JSCA/CEJA Justice studies center of the Americas LDCs Less developed countries NAFTA North American free trade agreement OAS Organization of American states PAHO Panamerican health organization UNDP United nations development programme USAID United States agency for international development


10 Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Arts JUDICIAL REFORM AND DEMOCRA TIZATION: MEANS VS. ENDS. PERCEPTIONS OF LEGAL CHANGE IN ECUADOR By Alexandra Anda August 2008 Chair: Charles H. Wood Major: Latin American Studies More than ever before, the democratization pr ocess as well as the future of democratic regimes in Latin America have been associated with the need to strengthen the rule of law. As a result, a regional and international movement fo r judicial reform (JR) in Latin America has emerged as a new development paradigm. In th eir efforts to empower the judiciaries and promote the rule of law in the Latin America, the reform movement proposes to strengthen the administration of justice by establishing the ad versarial, prosecutorial system of Western Industrialized nations and focusi ng on four main legal mechanisms: judicial independence, judicial effectiveness, state accountability to the law through checks and balances, and citizens access to justice. Although Judicial Reform is not a new development project, it has experienced an unprecedented momentum in the last decades, with the support of major international organizations and lending institutions promoti ng it. At present, every country in the region, except for Uruguay, has begun a process of JR, with more reforms yet to come. In this context, JR is also an attempt to modernize the Latin American judiciaries, promoting the rule of law as a tool for social, political and economic development. Nonetheless, research and assessments of the current state of judicial reform in the region have begun to question whether reforming the legal system is indeed conducive to democracy. Importantly,


11 these concerns arise from researchers and scholars who have promoted reform efforts in different Latin American nations for various years, but who believe that a traditiona l analysis of judicial reform provides an incomplete assessment a nd insufficiently explores necessary criteria associated with development objectives. Perhap s due to a lack of communication between different disciplines in the soci al sciences, especially sociolo gy and law, JR discussions have failed to acknowledge the complexity of development processes. In an effort to contribute to this subject, this project analyses JR as a development framework, focusing specifically on the assumption that JR will lead to democratization. This work is also based on my own research projec t conducted in Quito, Ecua dor in the Summer of 2007. The results presented derive from interviews I carried out with ke y legal actors in the country. Drawing from vast rese arch on JR and development in different countries in Latin America, as well as from my own research in Ec uador, I contend that strengthening the rule of law is foremost a political matter that can onl y be attained through l ong-term consensus; to succeed it must therefore be an embedded feature of a larger democratic process. In the end, my study suggests that unless the unilinear approa ches and simplistic assumptions of the development processes are carefully considered, legal reform in the Americas only risks becoming another cacophonous waltz in its development path.


12 CHAPTER 1 INTRODUCTION Since its discovery, America has been portrayed as the prom ised land, a continent that held the promise of a better life and a better future (Santiso, 2006: 13). The series of development discourses, ideologies, policie s and reforms, implemented throughout Latin America for more than five centuries illustrate how today, in the 21st century, that image of utopia prevails. Indeed, in the 20th Century alone, Latin America radically moved from structuralism to monetarism and from Import Substitution Industrialization (ISI) to free-market neoliberalism, resembling waltz ing paradigms as Javier Santiso (2006) has described this trend. Today, Latin America is beginning to waltz to yet another tune: J udicial Reform (JR). Essentially, JR implies breaking away from the i nquisitorial legal tradition inherited from the colonial period, to an adversarial, prosecutorial system, much like the one of the Western industrialized nations. Although JR is not a new development project, it has experienced an unprecedented momentum in the last decades, with the support of major international organizations and lending institutions promoti ng it. At present, every country in the region, except for Uruguay, has begun a process of JR, with more reforms yet to come. Thus, this reform trend is a regional as well as an international effort, referred to as the Judicial Reform Movement (JRM). In this context, JR is also an attempt to modernize the Latin American judiciaries, promoting the rule of law as a tool for social, political and economic development. Former World Bank President, James D. Wolfensohn, decl ared that, without th e protection of human and property rights and a comprehensive framew ork of laws, no equitable development is possible (Thome, 2000: 695). In terms of the economic development and the market, it is


13 thought that judicial reform will provide a st able, reliable legal fr amework with uniform, predictable rules that guarantee property, contract ual as well as intellect ual rights, ever more needed in free trade and globalization era (Fr hling, 1998; Thome, 2000). Admittedly, under this premise JR not only benefits the private sector, but also the average Latin American citizens by assuring that their individual a nd collective rights expressed in the Constitution are guaranteed. This includes their right to prope rty, but also their right to jus tice in a very broad sense. By enhancing the efficiency of the system, people of all economic sectors can have access to the courts and thus, their issues and needs will be ad dressed. As a consequence, JR also creates the need to change the structural organization of justice by implementing an autonomous judiciary that can assure transparency and accountability of its actions. This feature in particular has become one of the focal points of the JRM advo cacy, given the repressive authoritarian regimes of the past, as well as the rise in crime and violence in the last decade. This is when the democratic component comes into play. Reform a dvocates believe that by promoting the rule of law, institutions will gain legi timacy, the citizenry will trust and respect the government, and consequently, democracy can be consolidated in Latin America (Frhling, 1998; Hammergren, 1998; Carothers, 1999; Prillaman, 2 000; Thome, 2000). At first glance the potential benefits of JR appear to be remarkable indeed. Nonetheless, another voice in this debate re mains skeptic of the feasibility and potential success of the ambitious JRM agenda. Importantl y, this voice is not an echo from people who oppose the reform or who believe the rule of law is unimportant for development. On the contrary, these concerns arise from researchers and scholars who have promoted reform efforts in different Latin American nations for various years, but who belie ve that a traditional analysis of judicial reform provides an incomplete a ssessment and insufficiently explores necessary


14 criteria associated with development objectives. Followers of this pers pective question whether judicial reform will indeed translate into develo pment, unless certain crucial variables are taken into consideration. Particularly, they argue, JR will not lead to democratization, but in fact, a deeper process of democratic embeddedness is required prior to undergoing JR. Thus, a more comprehensive assessment of factors illustrates the emergence of a pragmatic perspective regarding the benefits of judicial reform. Certainly, JR has increasingly become a central issue in development projects as well as 21st century public policy. However, perhaps due to a lack of communication between different disciplines in the social scienc es, especially sociology and law, JR discussions have failed to acknowledge the complexity of development pr ocesses. Importantly, although the study of institutions has been a focal point of study in sociology and so cial anthropology for more than a century, in other disciplines such as economics, this is more of a novel term. Although Douglas North has been regarded as a pi oneer in economics for paying atte ntion to the central role of institutions, many sociologists and other economists had already addressed the issue long before North. Moreover, the concept of institutions se ems to have been oversimplified in economics and politics, coming to merely mean that social constraints matter. From this viewpoint, all that needs to be done is to export institutionssuch as the judiciaryfrom industrialized nations to LDCs (Less Developed Countries) and promot e social change (Snodgrass Godoy, 2004; Portes, 2006). In reality, the issue is not so simple. In an effort to contribute to this subject, this project analyses JR as a development framework, focusing specifically on the assumption th at JR will lead to de mocratization. For this purpose, this project is organized as follows:


15 In Chapter 2, I provide a histor ical synopsis of sate organization in Latin America. I focus on the practices that have influenced how the legal system has been structured for centuries. This includes several unique traditi ons such as Presidentialism and caudillismo Following this section, I offer an overview of the inquisitori al legal tradition adopted by the region after independence. Overall, Chapter 2 introduces the reader to judicial pr actices and organization prior to JR. Chapter 3 moves on to discuss JR. I explain in detail what JR means and the changes it implies for the traditional inquisitorial system. I present a histor ical summary of the first attempts to reform the Latin American judiciaries in the 20th century. The next section moves on to describe the current JRM, the forces that drive it, as well as its assumed goals. I pay particular attention to the link between JR and democratization. Thus, the final section in Chapter 3 specifically addresses the theo retical framework underlying the traditional JR and democracy perspective. The purpose is to pr ovide a balanced analysis of JR before moving on to a critique. In the end, both perspectives will be juxtaposed in order to acquire a be tter understanding of JR as a development project. Chapter 4 illustrates the pragmatic perspective of JR that contests the assumptions of the traditional framework described in Chapter 3. I focus on analyzing the Latin American experience in the strengthening of the main compone nts of the rule of law: efficiency, access and judicial independence. It will be shown how gr owing evidence from different Latin American nations point to the lack of long-term political consensus as the main obstacle to implementing a comprehensive JR. In fact, research shows that it is precisely t hose state actors responsible for carrying out JR that impede its implementation. T hus, at the heart of this pragmatic perspective is the realization that JR is foremost a political matter. To illustrate this situation, I provide


16 evidence from various research projects as well as country case studies that ultimately suggest that democratization must take pl ace along with JR, if not precede JR. In Chapter 5 discusses the case of judicial reform in Ecuador. Based on my own research project conducted in Quito Ecuador in the Summ er of 2007. The results presented derive from interviews I carried out with ke y legal actors in the country. One of the reasons I chose to study the Ecuadorian case was the striki ng lack of literature available on JR in that country. Although some books mention details about it, sufficient information to understand its situation remains scarce. Nonetheless, this project it is not a de scriptive piece regarding the reforms efforts and its technical results. Rather, my interest is to acquire a better grasp of lega l actors perceptions of JR. The value of such approach is that actors reactions to institutional change disclose crucial issues in the milieu, often responsible for advancing or hampering JR efforts. Certainly, this information and perspectives are not easily found in books; yet they are pa rticularly important because they are not coming from researchers or scientists, from politicians, or from average citizens in the streets. Rather they come from the actors w ho compromise the legal system itself. Evaluations of JR that concentrated on technical matters or reform implementation, although crucial to the JR effort, tend to miss the more fu ndamental social processes that create, react to, or affect change. With this in mind, the project presented here hopes to fill in some of the holes within the JR debate. The final chapter draws conclusions from the information and arguments presented. I contend that the current JR a pproach confuses development means with development goals; Development is not an automatic, natural, or guaranteed outcome of JR, but rather a vital component of its success. In the end, my study suggests that unless the unilinear approaches and


17 simplistic assumptions of the deve lopment processes are carefully c onsidered, legal reform in the Americas only risks becoming another cac ophonous waltz in its development path.


18 CHAPTER 2 LATIN AMERICA PRIOR TO JUDICIAL REFORM Introduction Im portant to the discussion of JR are the hi storically trends th at characterize Latin Americas political and legal organization. Al though I do not take a path-dependence or historical deterministic view on this subject, it is important to understand the context and reality of Latin American nations and their struggles towards development. Indeed, the political organization of the region during th e colonial era, especially its hierarchical nature, influenced the development of the nation-sate after independence. Importantly, this situation led to the formation of the Latin American strong executive model where the commander in chief holds most of the governmental power. This situation had important consequences fo r the judicial function. On one hand, it helped institutionalize the submission of the judicial branch to the ex ecutive. At the same time, it allowed leaders to preserve the inquisitorial model, a hierarchical system of justice instituted during the colonial era. Since the JRM aims to break way from th is long-standing legal process, it is important to understand how the system func tions in order to have a better understanding of what JR is all about. Historical Roots: Presidenti alism and Judiciary Control The for mal-legal aspect of the president, espe cially the control it exerts over the judiciary, is a central to discussions of JR and democracy. However, it is a complex issue that requires an analysis of the intellectual, cultural and historical roots of presidential power. This section provides a brief synopsis on this topic.


19 Presidentialism Colonial s tate organization was characterized by a high concentration of political power1. There were three viceroyalties or territorial administrations: Nueva Espaa (Mexico, Central America and the Caribbean), New Granada (the Andean region), and Ro de la Plata (Argentina, Uruguay and Paraguay). The virreys or viceroys were the kings re presentatives in different areas of the Americas (Vanden and Prevost, 2006). They headed the administration of the colonies and enjoyed vast powers and authority in executive, military and even some legislative matters. Unlike the English colonies in the Americas, there were no representative assemblies in Spanish America. Spain insisted on ruling from a far, often trying to control from Seville everything that happened in the entire colonial territory. Laws and decrees were in the hands of the monarchs, the Council of Seville, or the viceroys. Thus, a model of centralized political power was established the legacies of wh ich are manifest to this day (Mirow, 2004; Vanden and Prevost, 2006). Geographic obstacles made comm unication slow. Orders from Spain were often bypassed by the interests of powerful elites in the coloni es, who enjoyed the wealth and power in the new territories (Sondrol, 1999; Unga r, 2002; Mirow, 2004). The audiencias or advisory councils, composed of judge-presidents, corregidores or mayors, and appointed judges, were famous for corrupt practices. For instance, laws that were meant to protect the Indigenous were more often than not unendorsed by the local el ites and authorities. In short, territories governed by Spain were characterized by feeble infrastructure, lack of organization, unaccountable local rule, personalistic government (caudillismo ) and mercantilist economies (Sondrol, 1999). 1 This was a Spanish practice not only exercised in the colonies but in their own soil as well (Sondrol, 1999: 422).


20 People in the colonies, on the other hand, perc eived that norms and rules were imposed on them with no consideration for th eir realities and need s. Given the limited applicability of the laws, informal and unwritten modifications of the law became necessary and ultimately, a common practice. However, there were those who also took advantage of the situation to gain personal power. Most of the populat ion lived in rural areas, isol ated from the courts and the system in general (Mirow, 2004; Vanden and Prevost, 2006). The large rural landowners, therefore, were there to fill in the holes in th e system, becoming more of a figure of authority than the law or the colonial rule itself Cons equently, landowners managed to impose their own rules in the rural areas, promoting a system of clientelism. Thus, a chasm separating the government, the law, and the people was shaped (Mirow, 2004). After independence, the tende ncy to centralize power ( centralismo ) and to protect the interests of the elites remained. Among th e ideas proposed for government-building were conservative models, radical constitutions (m oral populism trying to reach to the popular sectors), and liberal constitutions (Gargarella, 2004: 142) Thus the proposals included systems with a monarch, an emperor, a life-president, or a life-consul. This does not mean that an effort to establish different forms of government, or an effort to sepa rate powers, was not attempted. The French and the American Revolutions inspired early pensadores and libertadores, like Bolivar, San Martn, and Sucre (S ondrol, 1999; Mirow, 2004). In f act, their writings reflect a rejection for the Spanish Crown oppression and an eagerness to install a sy stem, much more like the American one, with checks and balances in the scheme of government and with a federal union arrangement. Yet, since its early years, Latin American efforts to reform government organization were hampered by lack of party discipline, lack of consensus ( inmobilismo), and factionalism in parliamentar y and executive system s (Sondrol, 1999; Ungar, 2002: 24).


21 This situation, in turn, led the liberators to conclude that building republics with values from France or America was not possible in Latin America at that time. In their view, what the new republics needed was to find their own path after independenc e (Mirow, 2004). After several civil wars, the consensus among leaders was to follow a system of centralized political power, where the decision-making process was pl aced in the hands of the president and the administration in the capital city. This type of state organization has been referred to as Presidentialism or Ejecutivismo and centralismo (Sondrol, 1999; Gargarella, 2004). Since then, much to the convenience of the el ite, Latin America adhered to a political model were power was centralized and governance was excl usionary. By the late 19th century, new constitutions helped provide a certain degr ee of political order, but coercive government practices remained. Elites and oligarchies contin ued to rule, and violations to the constitution were still common practice. More problematic, those agents of the law themselves, including legal educators and students, were also perpetrators of elite c ontrol of the law and the courts. This development of governance in fluenced Latin American politic al development for centuries (Sondrol, 1999; Ungar, 2002; Ga rgarella, 2004; Mirow, 2004). Judiciary Control In light of its political developm ent, Latin American judiciaries have historically been controlled by the executive, and used as a tool to advance political interests. Although contemporary Latin American Constitutions stip ulate an equal divisi on of power among its branches (Executive, Legislativ e and Judiciary), in reality th e Executive enjoys most of the power and control (Larkins, 1996; McAdam s, 1997; Hammergren 1998; Thorp, 1998; Domingo, 2004; Mirow, 2004; Sondrol, 1999; Ungar, 2002: 119). Evidence from country-case analysis shows the judiciarys inability to challenge exec utive prerogatives. In times of emergency, for example, the constitution allows for unlimited pow ers of the president over the legislative and


22 justice apparatus. Similarly, the courts remain s ubservient to the President. Perhaps one of the best examples in recent histor y is the case of Peru and Al berto Fujimoris self-coup in 1994. Despite the explicit violation of the constituti on, Fujimori was able to dissolve Congress and dismantle the Legislative and Judiciary apparatus to rule unchallenged for several years (Hammergren, 1998; Ungar, 2002: 636). Thus, Ejecu tivismo is both a cause and consequence of the failure of countervailing inst itutions. Legislatures and Judiciaries, while theoretically coequal with the executive branch, are inevitab ly overshadowed by presidential predominance (Sondrol, 1999: 429). Latin American Judiciary Prior to Reform This section outlin es the Latin American legal model prior to JR, known as the inquisitorial model I emphasize those features that make it unique and that have important implications for the overall functioning of the system The goal is to be consistent with the goals of the overall chapter, providing the background for understanding the process of JR in Latin America. Inquisitorial Legal Tradition The legal sy stem Latin America inherited from the European empires and formally adopted after independence is known as the inquisitorial system. Its peculiar name is derived from its hierarchical legal design and stru cture, particularly, the powerfu l role accorded to the judge (McAdams, 1997; Duce and Prez Per domo, 2003: 71; Duce, 2007: 1). In the inquisitorial system the most important agent of the st ate is the judge, who is in charge of both prosecuting and d eciding the verdict of a case. This legal tradition is thus based on the idea that the judges are fact-seekers, resp onsible for establishing truth. Therefore, the judge is not only responsible fo r carrying out criminal investig ations, but also enjoys the


23 privilege of determining how the trial should be resolved, making the judge one of the most powerful actors in the system (Ungar, 2002; Du ce and Prez Perdomo, 2003; Duce, 2007: 16). Another key actor on the inquisitorial tradition is the defendant, although for very different reasons. Given the nature of the judges duties, the investigation is the most important phase in the process. Therefore, the starting point of an investigation, as well as the principal evidence, was the confession of the person being accused. If extreme methods such as torture were necessary, these were deemed justified. Accordi ng to legal scholars, torture was considered a useful tool to gather information (Duce, 2007: 3). This does not mean that there is no defense for the accused in this model. Defense lawyers ar e part of the legal process but their role is substantially limited (I address this in mo re detail in the paragraphs below). Perhaps the most consequential f eature of the system is its wr itten nature. The inquisitorial process is based on written motions. This means that all matters concerning legal procedures, including all arguments and debates, are recorded in writing. No oral hearings or trials exist. This eliminates the opportunity to have a real confr ontation between the parties involved, or even for cross-examination of witnesses. In fact, more ofte n than not, trials only consist of reading these written files compiled by the judge (Thome, 2000; Ungar, 2002; Duce and Prez Perdomo, 2003). In practice, this type of legal model has permitted non-judicial staff, such as clerks or judges assistants ( actuarios or secretarios ), to handle the resolution of cases. This represents a complete violation of the code since the fate of the accused is being placed in the hands of people with limited or no knowledge of the la w (Duce and Prez Perdomo, 2003: 73). As a result, under the inquisitori al system the defense has very limited rights. The use of strictly written records undermines the participat ion of the defense at different levels. Litigants for their part are limited to working with written files, and judges have little contact with the


24 accused and their defense attorneys. In practice, this means that th e job of those involved in the process is more bureaucratic and administrativ e in nature (Frhli ng, 1998; Hammergren, 1998; Domingo, 2004; Duce, 2007). Thus, according to Duce and Prez Perdomo, The accused is conceived as an object of the process more than as a subject with rights (2003: 71). This tradition also has seve ral consequences for the overa ll functioning of the justice system, especially in terms of efficiency. For example, under the inquisitorial process judges work under the principle of criminal legalit y, which obliges them to investigate every case that comes to their attention until it is solved (Duce, 2007). The only acceptable reason to stop an investigation is in cases where it is not possible to gather sufficient eviden ce. Judges are thus overwhelmed with work, often adopting dubious meas ures to solve cases. Overall, these are time-consuming and expensive practices that place considerable burde n on the administration of justice (Frhling, 1998; Thome, 2000: 702). Latin American judiciaries also exhibit a hierarchical structure of authority. For example, allowing the judges to make ample decisions and limiting the role and rights of the accused, inevitably concentrates power and undermines th e role of other legal actors (Duce and Prez Perdomo, 2003). Furthermore, the in quisitorial process allows for th e review and reversal of trial decision. Since there is a written record of all procedural matters, the su perior tribunal has the power to review the case, deciding whether or not the laws have been properly applied. In legal language, these elements are referred to as in toto and ab initio (Duce, 2007: 3).Thus, in Latin American judiciaries the truth can easily be changed, adjusted or rees tablished by those in a higher position. Finally, the organization of the judicial branch as a potential career for citizens also exhibits a hierarchical structur e with clientilistic practices. The Supreme Court (and sometimes


25 the President) usually has control over all th e courts and its admini stration, including the selection of entry-leve l judges and their subsequent promo tions. Consequently, the system has facilitated the practice of wide spread of patronage and corrupt ion at all levels (Hammergren, 1998; Sondrol, 1999; Thome, 2000: 703; Ungar, 2002; Mirow, 2004). Conclusion Vast and complex historical a nd structural processes explain m any of the current issues regarding the Latin American democracies and ju diciaries. The Spanish colonial organization, for one thing, had a strong impact on how the gove rnment and the law were organized in the region. After independence, the regions search for the best path to prosperity proved challenging. Hundreds of revolutions and cha nges in power took place, but in the end the Presidentialist political model was implemented a nd the inquisitorial legal system preserved, at least in most countries. Despite centuries of so cial, political and economic changes, its legacies in contemporary Latin America remain strong. This situation is reflecte d in the series of revolutions and authoritarian ta keovers of the past centuries, as well as in the democratic instability of the last few decades (Sondrol, 1999; Valenzuela, 2004). In terms of the justice system, perhaps one of the most consequential resu lts of these early events has been the inability to institute independent judiciaries in the regi on, with checks and balances in the scheme of government. In the context of JR, however, these events and trends represent much more than just history. The Presidentiali st political model along with th e legal practices created under the inquisitorial system for more than 500 years have a direct impact on the results of JR today. The impact of these trends in the efforts towards JR will be more apparent in subsequent chapters. In the mean time, I now turn to Chapter 3 where I explain its premises, history, and driving forces


26 CHAPTER 3 JUDICIAL REFORM IN LATIN AMERICA Introduction Although most Latin Am erican countries ach ieved independence dur ing the early 1800s, by the turn of the 20th century, they still func tioned under the legal struct ure instituted during the colonial period; a system known as the inquisitorial model. Despite the formation of new republics and the existence of a liberal ideological movement, modern day Latin American judiciaries are still based on an 18th century European legal system. Even though continental Europe continued to systematically reform thei r judicial system, adopting a procedural model, Latin America only began to implement major changes in the 1980s (Popkin, 2000; Ungar, 2002; Duce and Prez Perdomo, 2003; Mirow, 2004; Duce, 2007). These relatively recent modifications, nevertheless, paved the way for othe r major reforms of the justice system to take place around the region, with many more currently on their way. This phenomenon, often referred to as the JRM enjoys an unprecedented momentum today, supported by many of the worlds largest and most important organizatio ns and banking institutions (Hammergren, 1998, 2002; Mndez et. al, 1999; Popkin, 2000; Pr illaman, 2000; Thome, 2000, Domingo, 2004). This chapter provides an analysis of judici al reform and the contemporary JRM in Latin America. I begin by defining what JR means, in cluding the technical and administrative changes involved in a justice reform. I then provide a brief history of the early attempts for JR in Latin America, to finally expand on the contemporary JRM. I discuss the characteristics, goals and forces behind it. For purposes of this study, how ever, I will pay partic ular attention to the premise that JR can help strengthen the rule of law and promote democratization.


27 Reform: What It All Means In the case of Latin Am erica, JR entails a move away from the inquisito rial judicial system to a prosecutorial legal order, similar to the one in Western In dustrialized nations. Certainly, legal structures in a society are dynamic, not static. Therefor e, throughout the centuries after independence, Latin American judiciaries did, in fact, change and adapt. Yet, none of the changes represented a divergence from the inqui sitorial model institute d during the colonial period (Hammergren, 1998; Popkin, 2000; Duce, 2007). On the other hand, the prosecutorial legal trad ition originated in England, and is often referred to as the common-law tradition However, it has been called accusatorial because in its early days, the process was initiated through an accusation by a private individual, unlike the Latin American system where a judge could do so, with or without the interest of a victim. Today, however, it is the prosecuto r who can initiate the investig ation, and he or she can do so without the need of a private citizen to make a claim (Du ce, 2007). Moreover, unlike the inquisitorial process, the judges role is to act as a referee betw een parties in an oral hearing, where both sides have the opportunity to confront each other, present evidence, cross-examine witnesses, and have access to all the information relevant to the cas e. It is a jury, not the judge, however, who decides the verdict, thereby allowi ng a more transparent procedure where citizens become part of the decision-making process. The United States, as a former British colony, inherited this adversarial tradition (Duce and Prez Perdomo, 2003: 72). In order for the adversarial system to work properly, the process of JR needs to transform three different levels of the old systems: structure, substance, and legal culture. Ultimately, this entails the complete elimination of the old syst em, the creation of new in stitutions to support the new system, and changing the practices, pro cedures, behaviors and customs of the main participants of the legal sy stem (Hammergren, 1998; Prillaman, 2000; Duce and Prez Perdomo,


28 2003: 78; Duce, 2007: 14). Therefore, in terms of specific reforms, Latin American judiciaries are supposed to introduce oral proceedings and public hearings; separate the duties and roles of the judges and prosecutors; recognize suspects, defe ndants and victims rights; and introduce the principle of timeliness to solve cases more ef ficiently (Hammergren, 19 98; Prillaman, 2000; Duce and Prez Perdom o, 2003: 78). By introducing the oral process, the written judicial record no long er remains the judges principal duty, nor the main source of evidence. Further, the evidence is orally presented at hearings as opposed to merely rely ing on a written record that is read out loud during a trial (Duce and Prez Perdomo, 2003; JSCA, 2005; Duce, 2 007). Similarly, opponents have the opportunity to face each other, present evidence in their defense or against the other party, as well as present oral arguments. This feature has great significance since, as Frhling points out, the possibility of having an oral trial with witnesses telling their stories live, with the additio nal opportunity of cross-examinations, also permits the corroboration of thei r versions, making it a more ef ficient way to detect false testimonies (1998: 244). Moreover, the judges have the opportunity to hear both parts and reach a verdict only after having done so. Th e secrecy of the inquisitorial trad ition is thus eliminated in the process, reducing judges work and providing more acco untability of their d ecisions (Frhling, 1998; JSCA, 2005; Duce, 2007). Similarly, JR entails a signific ant decrease in the role of th e judges and the emergence of a new legal actor: the prosecutor. Under the new system, the prosecutor is in charge of the investigation, and is thus th e one who collects evidence (Hammergren, 1998; Duce and Prez Perdomo, 2003). To do so, this, the prosecutor wo rks closely with the polic e, thereby eliminating the need for judicial investigatio ns. The idea behind the reform is to limit the judges role to safeguarding constitutional rights and granting any necessary judici al authorizations, thus making


29 sure that cases are investigated and conducted acco rding to the law. Judges acting in this pre-trial stage are referred to as the judge guarantor or th e examining magistrate (J SCA, 2005; Duce, 2007). The prosecutor also enjoys discretionary power to select cases he or sh e believes should be brought to court. This latitude is governed by th e principle of opportunity that allows prosecutors to select cases based on several criteria, such as whet her or not there is public interest in the case, or whether the accused has a significant participation in the crime. This f eature is particularly important because, if implemented properly, it can a llow poorly-funded judiciar ies, like the ones in Latin American, to concentrate reso urces on so those cases important to society, thus working more efficiently. Additionally, the es tablishment of an independent prosecutors office permits the accused access to the collected information and ev idence regarding his or her case (JSCA, 2005; Zalameda, 2005). As opposed to Anglo-Saxon tradi tion, Latin American judiciaries, for the most part, still lack the trial by jury component. This means that th e judge still decides the verdict. Yet, under the reform, the Latin American model ha s introduced a panel composed of three judges that determines the verdict. The decision does no t have to be unanimous, but simp ly decided by a majority of two out of three judges (Ratliff and Buscaglia, 19 97; Duce and Prez Perdomo, 2003). Another distinctive feature of the Latin Am erican case is that the panel of judges is allowed to introduce additional evidence and directly in terrogate witnesses, even when the parties involved have not yet had the opportunity to do so (JSCA, 2005; Du ce, 2007). By implication, these components enhance the rights to the accused. In contrast to the authoritarian nature of the previous colonial or der, there is some tran sparency in the way the investigation process is carried ou t. Constitutional rights tend to be more enforced and, prosecutors have the obligation to provide information about th eir charges before decidi ng whether to take the


30 case to trial. Consequently, the accused have the opportunity to seek lega l advice and a defense attorney, giving them the opportuni ty to negotiate a plea in cases of minor to medium offenses (Ratliff and Buscaglia, 1 997; JSCA, 2005; Zalameda, 2005). Indeed, concepts such as assuming that the accused is innocent until proven guilty, and the need to provide free legal counseling, have been introduced in the codes (Ungar, 2002, JSCA, 2005; Zalameda, 2005). Ultimately, all these proposed changes are meant to contribu te to strengthenin g of the rule of law. This means that, theo retically at least, these reforms will allow the justice system to solve cases in an efficient and timely fashion, grant citizens from all economic spheres more access to justice, and enhance transparency of the system, as well as more accountability (McAdams, 1997; Hammergren, 1998; Prillaman, 2000; Thome, 20 00; Ungar, 2002; Ferrandino, 2003; Navarro, 2003). However, keep in mind that all the legal reforms and technical modifications presented in this sections, are th e rationale behind JR. It do es not mean that these chan ges have been introduced everywhere, nor does it mean that they have been successfully intro duced (Hammergren, 1998, 2002; Carothers, 1999; Prillaman, 2000; Ungar, 2002; Navarro, 2003; Do mingo, 2004). Before turning to discuss these issues in more detail, however, I first intro duce a brief history of the reform movement, in order to understand its evolution and significance today. History The process of JR in Latin Am erican begun as early as 1939, when significant changes in the code of criminal procedure were applied in the Argentine pr ovince of Crdoba. For the first time in the regions history, oral proceedings were introduced in the penal system, becoming the first major attempt to break from the inquisitorial process inherited from the colonial era. This practice would later spread to the rest of the country at the federal level through a reform proposal known as the Maier reform, publis hed in 1986 when the JRM was back on the development agenda. In 1972, Costa Rica became the first nation to follow the Crdoba


31 example, although it would take several decades fo r this trend to spread to the rest of the continent and gain the momentum it enjoys today (Frhling, 1998; Duce and Prez Perdomo, 2003). Nevertheless, the Argentina experience represents a milest one in JR efforts, since it became the basis for the model code proposed in 1988 by the Instituto Iberoamericano de Derecho Procesal (the Ibero-American Institu te of Procedural Law), one of the most influential actors in the JRM (Frhling, 1998; Thome, 2000; Duce, 2007). It was not until the 1960s that the issue caught the attention of some members of the international community, mainly soci al scientists in the United Stat es, as theories of development began to emerge. Essentially, they argued that underdevelopment was caused by the uneasy coexistence of Western and traditional traits and in stitutions, which, in the case of the judiciary, implied a combination of different types of lega l systems. This combination included practices that resembled foreign systems and informal mo dels with traditional customs and values, making the entire system inefficien t (Frhling, 1998: 239). Note, howev er, that this modern vs. traditional dichotomy is still part of th e philosophy of the current JRM (Frhling, 1998; Thome, 2000; Portes, 2006). Furthermore, the Law and Development movement of the 1960s gave priority to reforming legal education. It was thought th at badly trained judges and lawyers were one of the principal problems of the justice system. In fact, in some of the reformers view there was a lack of concern for the growth of public laws shown by ju rists [as a] consequen ce of training that was excessively concerned with the concepts of private law (Frhling, 1998: 239; emphasis added). Consequently, from 1959 until 1965, various Conf erences of Latin American Law Schools took place in different countries, with the assistan ce and participation of many U.S. law schools,


32 foundations and government agencies. Particular at tention was given to the support of research and training of law professors at different institutions (Frhling, 1998; Carothers, 1999). Nevertheless, the reform efforts put little emphasis on working with sectors outside education, thus minimizing their impact. Importantl y, since law professors were the main target, the judges were excluded from the reforms, and many people in the legal education arena did not support the changes. Later on, when military regimes spread throughout the region, JR was put on hold (Frhling, 1998). The period of authoritarianism that began in the 1960s not only meant that the Law and Development movement lost its momentum, but JR also lost the ground that had been gained. Countries like Argentina, Ch ile and Uruguay experienced some of the worst episodes of human rights abuse in the region, with thousands of people disappeared and killed during that time. In the process, judiciaries were virtually dismantled and existed mainly to serve the interests of those in power, allowing them to commit state sponsored crimes with impunity (Frhling, 1998; Carothers, 1999; Pereira and Davis, 2000; Domingo, 2004). It was not until the democratization process th at began in Ecuador in the late 1970s that judicial reform was once again on the age nda (Frhling, 1998; Huntington, 2001). When civilians retook control of the government, democratic regimes were put in place under the ideal of continuing the path to development. Along w ith democratization came a series of neo-liberal policies, determined to open the markets to inte rnational competition and reduce the role of the state. Neoliberal reforms became the dominant formula for successful development around the world (Frhling, 1998; Thorp, 1998; Thome, 2000; Sunkel, 2005). Contemporary Judicial Reform Movement A distinguishing feature of th is new generation of the JR M is its regional scope. All Spanish-speaking countries from Mexico to Argen tina have initiated the process of reform. The two exceptions are Panama, where the reform is pending approval by the legislative body, and


33 Uruguay, where there simply has not been the necessa ry political or technical consensus to agree on a reform. Brazil, on the other hand, is missing fr om the list since their system is a legacy of the Portuguese system. The differe nce in language poses further obs tacles for them to undertake the same type of reforms as the rest of Latin America. This is not to say that Brazil has not attempted to change their judicial system for, in fact, several reforms are already well underway (see JSCA, 2005; Duce, 2007: 6). The international community has, nonetheless, played a key role towards the promotion of JR. Political and economic integra tion of the Latin American na tions to global trends have become a major force driving many of the chan ges taking place in the region. Politically, for example, the pressure for reform was also based on the need to attain international legitimacy (Popkin, 2000; Prillaman, 2000; Thome, 2000). Ma ny developed nations and international organizations demanded these changes as a cond ition working with Latin America. During the same period the reforms initiated, several Latin American nations signed international human rights treaties, like the American Convention on Human Rights in San Jos, Costa Rica; or the International Covenant on Civil and Political Rights. Signing these treaties meant governments were willing and ready to commit to guaranteei ng human rights in their countries, which included the right to a fair tria l and due process, inexistent components under th e inquisitorial process (Carothers, 1999; Popki n, 2000; Prillaman, 2000; Ungar, 2002; Duce, 2007). In this context, advocacy for JR became easier and more widely accepted. Thus, today the international community puts a lot of pressure on governments to dedicate more attention to judicial reform efforts. In this sense, as Thome argues, that the pressure to establish national international legitimacy in a globalized era has become a majo r pressure for Latin American nations to set forth a process of JR (2000: 694).


34 In terms of economic integration, given the global trend towards neo-liberal economic policies that call for a reduced ro le of the state and increased role of the market, a new legal framework was seen as necessary (Frhling, 199 8; Thome, 2000; Prillaman, 2000; Portes, 2006). Such is the case with many of the bilateral a nd multinational agreements signed during the last decades, calling for a more globalized economy and political system. Treaties like NAFTA or CAFTA demand very specific lega l mechanisms, forcing many Latin American nations to adopt dispute settlement and arbitrati on methods, especially when it comes to disputes with foreign investors (Frhling, 1998; Thome, 2000; Duce, 2007) Some even argue that one of the main purposes of economic integration is, in fact, th e export of United States legal norms to Latin America, in order to protect foreign investors interests (see Baker, 2005). Not surprisingly, therefore, during the 1980s the United States, through its Agency for International Development (USAID), was among th e first actors supporting j udicial reform was. USAIDs mission was to improve the administration of justice, especially criminal justice. This included training police forces and judges in matters such as case investigation, case management, and the creation of legal databases. La ter, some of these projects were carried out in conjunction with the United Nati ons, but it was the United Stat es that planned and financed much of the JR efforts (Frhling, 1998; Caro thers, 1999). Another actor lending substantial support to the JRM has been Instituto Iberoamericano Procesal Penal (the Ibero-American Institute of Procedural Law), wh ich developed a model for reform based on the German process, with some influence from the Portuguese and Italian legislation (Fr hling, 1998; Duce and Prez Perdomo, 2003; Duce, 2007). Importantly, the current JRM is also promot ed by an elite group of Latin American intellectuals working for the Justice Studies Cent er for the Americas (JSCA/CEJA), supported in


35 part by the Organization of Amer ican States (OAS). Reformers encompass professionals from various disciplines, mainly attorneys with academic experience in criminal law. These attorneys cooperate across different nations, lending technical assistance and developing reform models to improve each countrys efforts (JSCA, 2005; Prillaman, 2000; Duce, 2007). Forces in Favor of Judicial Reform Certain key motives connect the Latin Am eri can reform efforts. Although many of these are connected to the idea of modernizing the state, and the need to improve efficiency of the justice system, other factors are at work as well. The sections that follo w provide a glimpse of the views and reasoning of those act ors and forces that believe JR is an appropriate tool for achieving development in many LDCs. Although these forces vary in intensity in every country, common factors across countries in fluence the reform movement. In no particular order, these are: increasing violence and citizen insecurity ; eroding confidence in th e judiciary; economic development; and democratiza tion and the rule of law. Violence and Citizen Insecurity As the turn of the 21st century approached, concern for public safety took a central role in political debates as Latin America was identified as the most violent region in the world (Pereira and Davis, 2000: 5). No longer lim ited by the censorship im posed by authoritarian regimes, the media propagated ca ses of crime and violence in the streets, and exposed a justice system that was unable to protect citizens fr om a growing sense of insecurity. Thus, as inefficiencies, corruption, and abuse of power of the existing criminal justice system became routine headline news, advocacy for judicial refo rm gained more strength (Caldeira and Holston, 1999; Pereira and Davis, 2000; Davis, 2006). The c onsequences turned out to be far-reaching indeed, as the public and the media talked about a collapse of the criminal justice system and the


36 Panamerican Health Organization (PAHO) classified this increase in crime and violence as the social pandemic of the 20th century (Prillaman, 2003: 3). It is important to highlight that despit e the transition to democracy, state coercion continues to be a major problem in many countries in the region. In Brazil, for example, Caldeira and Holstons ethnographic study of violence in the cities of So Paulo and Braslia revealed that Police violence has reached unprecedented leve ls, and the forces of law and order are themselves one of the main agents of violence in many cities (1999: 695). Police brutality, for example, continues to be an issue both in side and outside of th e jails. Human Rights organizations working in Brazil have showed evidence of how the police tortures arrested citizens when investigating a case (Caldeira and Holston, 1999: 701; Mndez et. al, 1999). Corruption has further tainted the polices public image. Caldeira and Holston found corruption to be one of the most common probl ems in many of the police forces. Yet, the problem goes even further since many police officers are entangled with organized crime (1999: 695). In countries like Argentina, El Salv ador and Guatemala, military officers and offduty policemen take advantage of their authority to have access to weap ons and use their power to cover-up information that could link them to organized criminal gr oups or drug trafficking (Prillaman, 2003: 6). Particularly problematic is the bottom-up violence taking place in the region. (Snodgrass Godoy, 2004). Crime has soared to record levels, yet the problem in Latin America is not only that robbery has increased, but th at violent crime is more prev alent than before. Murder, in particular, has escalated during th e past decade. For instance, Ca ldeira and Holston (1999) report that the homicide rate for Brazil in 1981 wa s 14.62 per hundred thousand. By 1996, the rate had climbed up to 47.3 (1999: 696). During the same period, astonishing increases were recorded in


37 Argentina (300%), Peru (379%), and Colombia (336%) (Prillaman, 2003: 1). Overall, the regions homicide rate is as hi gh as 23 per hundred thousand, cons tituting more than twice the worlds average (Prillaman, 2003: 3).1 Eroding Confidence in the Judiciary Thus, it is not surprising that all over Latin America, citizens hold li ttle confidence in the justice system or the police. Prillaman portrays this situation reporting that in a poll conducted in Brazil and Mexico, half of the re spondents declared that they do not even call the police when they have been victims of crime, because th is would only be a waste of time (2003: 9). Similarly, this negative image of the police has al so lead citizens to av oid reporting crimes for fear of repression (Mndez et. al, 1999; Prillaman, 2003). This is especially the case of poor people who are more frequently the target of po lice abuse, a phenomenon that has been referred to in sociology as the criminalization of the poor Consequently in Latin America, as Caldeira and Holston put it, the poor have learned to fear the police and distrust the judiciary system (1999: 701). As a result, the already negative perception of the justice system deepened, as it proved to be ineffective in providing public security, especially for violent crime. This provoked serious consequences for the legitimacy of the criminal justice system and so me of the major state institutions, as parallel system s of justice became commonplace. Several recent events in Latin America show evidence of citizens taking the law into their hands. For example, in the absence 1 Although I do recognize that crime and violence do not have the same meaning, I follow Prillamans arguments for using both concepts interchangeably in this work. Not all crime is violent and not all violence is criminal, yet, there is an overlap between both concepts, allowing many to identify them as proxies for each other (Prillaman, 2003: 5). For instance, domestic abuse is violen ce, yet in many countries it does not constitute a criminal act. Additionally, I am discussing the particular case of Latin America, where the issue is the intensification of violent crime, thus both concepts tend to overlap even more. Finally, the lack of data and the vast discrepancies between sources, also lead to use both crime and violence as proxy measures to discuss the current situation in the region (Prillaman, 2003).


38 of the police the privatization of justice and alternative forms of justice have become a common phenomenon. In Brazil, as in many other countrie s in the region, the land scape of cities are changing as increasingly more pe ople hire private security guards to watch over their houses or businesses, and some even build walls and place bars in front of their houses or apartments (Mndez et. al, 1999; Caldei ra and Holston, 1999: 714). In less privileged segments of society where people cannot afford these types of protection, residents have opted for more extreme measures For instance, there has been a rise in the number of registered, as we ll as illegal guns. Although posse ssion of illegal weapons in penalized by the law, in light of the lack of police protection, c itizens have opted to acquire and use them for their own defense (Caldeira and Holston, 1999). More problematic, however, is the increasing trend to hire vigilantes to deal directly with criminals. This practice is widespread in the Brazilian favelas (shantytowns), and rural communities in Guatemala where the purpose is to kill criminals (Mndez et. al, 1999; Caldei ra and Holston, 1999; Snodgrass Godoy, 2004). Prillaman reports that in Ecuador the situation is such, that public executions no longer shock the average citizen (2003: 10). In light of these circumstances, advocacy for reform of the criminal justice system seemed to be more critical than ever before. Particularly, reformers argue that since fear and insecurity are socially constructed, improving the efficiency of the justice system could substantially help improve the situation (Duce and Prez Perdomo, 2003) Economic Development Beginning in the early1990s, along with dem ocr atization and as a m eans to tackle the devastating debt crisis of the 1980s, Latin Am erica embarked on a series of Structural Adjustment Programs and neoliberal economic po licies, vehemently advocated by agencies like the World Bank and the International Monetary Fund (IMF). These neoliberal economic policies


39 were supposed to put an end to inflation and to offer rapid economic growth for the region. Some of these policies included the opening of its economies to international competition by eliminating tariffs and privatizing former stat e-owned enterprises, debt repayment programs, significant cuts in social spending, monetary devaluation, and tax reforms (Thorp, 1998; Sunkel, 2005; Santiso, 2006). Nevertheless, in order to accomplish these economic goals, the consensus was that it was necessary to count on the support of an effective, reliable judicial structure (Frhling, 1998; Prillaman, 2000; Thome, 2000; Domingo, 2004; Baker, 2005; Portes, 2006). Central to this argument was the sudden realization in certain economic development scholarship and international financial organizations research that institutions matter; a development trend that Portes (2006) refers to as neo-institutionalism. From this perspective, a change in the judi ciary could help achieve economic development by providing a stable, reliable, transparent legal framework with uniform, predictable rules that guarantee property rights, including intellectual property rights, as well as contractual rights (Frhling, 1998; Thome, 2000; Baker, 2005). Therefor e, JR was also way to establish a secure legal climate for private and foreign capital look ing to invest in the region. For example, the World Bank, one of the largest advoc ates of JR in the last ten y ears viewed the rule of law as a precondition for private sector development (Thome, 2000: 697; emphasis added). As a result, beginning in the 1990s internati onal cooperation agencies began to take an interest in the subject. Some of these include Un ited Nations agencies such as the United Nations Development Programme (UNDP), and the Institute for the Prevention of Crime and Treatment of Offenders (INLAUD); and the Organization of American States (OAS) through its Justice Studies Center of the Americas (JSCA). Bilateral support from countrys like Germany, Spain and, more recently, Canada has been consider able, although the United States assistance still


40 remains as the most prominent. USAIDs, co llaboration has been cons istent, although it has varied on a countrycase basis. Cooperation of international lending ag encies, like the InterAmerican Development Bank (IDB); and the Intern ational Monetary Fund (IMF) has also been relevant (Frhling, 1998: 247; JSCA, 2005; Duce, 2007:11). Among these, the World Bank is the major player in judicial reform efforts throughout the continent. By 2000, The Bank carried out 10 free-standing judicial reform projects with another 14 on the way. Another 15 projects addressed legal and judicial con cerns, plus another 350 projects we re carried out in 87 nations (Thome, 2000: 697). Democratization and the Rule of Law2 In the late 1970s and particularly in the 1980s, Latin America experienced a wave of democratizations3, as the military of country after country turned the control of government to electoral officials. Nevertheless, it was thought that without a proper, ef ficient judiciary that could help uphold democratic values and s upport the changes needed in social life, democratization could not be attained. In ma ny cases, especially in those nations that 2 As a form of government, democracy has been defined in terms of sources of authority for government, purposes served by government, and procedures for constituting go vernment (Huntington, 1991:5). Similarly, Constitutions lay the basis for governance and delineate rights and obligati ons of both the State and the citizens in a democratic system (Eckstein and WickhamCrowley, 2003: 6). The basic among these rights and duties is, however, the respect for formal electoral rights, where there must be regular, free, elections based on universal and equal suffrage. Nonetheless, this definition is too narrow for purposes of this study. Consequently, the vision of democracy of interest here is the one referred to as true demo cracy or full democracy; essentially, a democracy of libert, egalit, fraternit This refers to a system of governance which, in addition to having the right to vote, people also have the right to nominate representatives for political offi ce, having more than one political party to chose from, freedom of expression and association, collective rights for indigenous groups and minorities; and a commitment to adhere to the protection of universal human rights as stipulated by the United Nations International Covenant on Civil and Political Rights based on the Universal Declaration of Human Rights (entered into force on March 23rd, 1976) (Huntington, 1991: 25; Eckstein and WickhamCrowley, 2003: 18). 3 Following the contemporary definition of democracy, democratization has been commonly defined as a gradual, evolutionary, and delicate process during which democratic procedures of government are established and maintained (Larkins, 1996: 605). Essentially, democratization is the process of change from a non-democratic political system to a democratic one. The latest trend towards democratization was evidenced between 1974 and 1990, and has been referred to as the third wave. Latin American nations are part of this third wave, as they began their transition from authoritarian military regimes in the late 1970s (see Huntington, 1991).


41 experienced more repressive dict atorships, this meant a reconstruction of the legal apparatus (McAdams, 1997; Carothers, 1999; Prillaman, 2000) As democracy and free trade became the new dominant development paradigm, a regional movement looking to reform the legal order emerged. The idea was to establish a legal order that was compatible with democratic values, reforming the criminal justice system and its hi erarchical nature, presen ted the perfect initial focus (Duce, 2007). Despite decades since the democratic transiti on was initiated, Latin American governments continue to experience instabil ity, economic crisis, pervasive so cial and economic inequalities, and cases of human rights abuse. Today, many sc holars question the quality of democracy, and whether values associated with democracy ha ve permeated the region (Caldeira and Holston, 1999; Carothers, 1999; Mndez et al, 1999; Eckstein and Wic khamCrowley, 2003; PrezSainz, 2005; Sunkel, 2005; Santiso, 2006). According to Prillaman, polling results show that distrust in democratic institutions in Latin Amer ica, especially in those concerning with justice and crime prevention, are much higher than the international aver age (2003: 8). Data from the 2004 Latinobarmetro survey confirm this trend. Table 3-1 shows the levels of confidence in three of the key state institutions: the judiciary, the government and the political parties. Each category reflects a st rikingly low level of faith in th e institutions in Latin America. Indeed, almost 75% of the respondents are either not at all or not very confident in the judiciary, the government and the political parties. Thus, these figures corroborate that, overall, Latin Americans today have low confidence in state institutions. In fact, the Latinobarmetro survey discloses that since 1996, in most countri es of the region, confidence in the judiciary barely reaches a level of 30% (Duce, 2007: 9).


42 Similarly, polling results suggest that citizen s in Latin America are not satisfied with democracy. The data in Table 3-2 show the levels of satisfaction with demo cracy for all of Latin America in 2004. The results refl ect how dissatisfied people in the region are with the way democracy works in their country (as stated in the Latinobarmetro question). Out of 17,074 cases in the entire region, onl y a 9% (1,520) responded that they were very satisfied with democracy. Thus, once again more than half of the respondents (65%) were either not at all or not very satisfied with the way democracy works in their country. In light of these circumstances, the n eed to strengthen the rule of law4 in order to consolidate democracy in the region has become the focus of attention in the JR agenda (McAdams, 1997; Hammergren, 1998; Carother s, 1999; Prillaman, 2000; Ungar, 2002; Domingo, 2004). Social scie ntists, researchers and policy makers agree that Democracy cannot exist without the rule of law (Ungar, 2002 :1). The reasoning be hind this argument is that the rights and duties stipulated in the constitution (i.e. electoral rights, individual rights, collective rights, human, rights) cannot be guaranteed unless they are enforced by the law. The Constitution becomes a mere piece of paper unless there is a judiciary behind it protecting the fulfillment of all rights and regulations. Therefore, the rule of law is what allows the Constitution to take form and become a reality and, by implication, what a llows the consolidation of democracy. In turn, legitimacy of the State and the system of governance depends on the ability of the State to enforce constitutional laws and safeguard constitutional rights. This, however, can only be attained through th e rule of law (Larkins, 1996; Eckste in and WickhamCrowley, 2003). From this perspective, therefore, the rule of law plays a principal role in allowing the democratization 4 The most widely-accepted definition of the rule of law comprises four ma in features: judicial independence, judicial effectiveness in the administra tion of justice, state accoun tability to the law through checks and balances in the scheme of government, and citizens access to justice (Prillaman, 2000; Ungar, 2002).


43 process to transpire, as well as to consolidate democracy itself. Theore tically, strengthening the rule of law implies a stronger democratization pro cess and, in the end, the survival of democracy (Larkins, 1996; Frhling, 1998; Hammergren, 1998; Carothers, 1999; Prillaman, 2000; Thome, 2000; Ungar, 2002; Domingo, 2004; Eckstein and Wic khamCrowley, 2003). In practice, however, it is not so simple. Rese arch increasingly shows how this linear sequence of the JR framework has lost its shape and has begun fading as the reform process is carried out. JR efforts have and continue to e xperience obstacles and set-backs to the point of opening the question of whether JR strengthens democratization, or if democratization (showing signs of deeper democratic embeddedness) is actua lly needed prior to the reform of the justice system (Carothers, 1999; Diamond, 1999; Popkin, 2000; Prillaman, 2000; Ungar, 2002; Navarro, 2003; Domingo, 2004). Importantly, this concern is not coming from an anti-reform faction or mere critics, but from researchers and advocates of the strengthening the rule of law. While the need to improve the rule of law and justice in Latin America is not the topic of debate, the current approach of the JRM towards the strengthening of the rule of law is. Conclusion Refor ming the justice system is by no means a new practice. Most nations in the world have systematically made changes to their judi cial structure throughout centuries. As opposed to the United States and Western European nations however, Latin American countries, along with other LDCs, did not significantly modify their judiciaries, thereby maintaining the inquisitorial legal system inherited during the co lonial era for over five centuries. As a result, va st differences mark the Western Industrialized nations judiciaries with t hose of Latin America and, by implication, their legal culture and practices. Similarly, the JRM is not a new phenomenon in the region. The first steps towards JR date as far back as 1939 in Crdoba, Argentina. Since then, various attempts to change the justice system have been recorded in different nations, although


44 none of them truly significant up until the 1980s. The resurgence of JR in Latin America thus coincided with the process of democratization in the region. Today, JR stands as one of the most important development tools, supported by the worlds largest and most prominent international organizations. It is thoug ht that breaking away from the inquisitorial legal orde r to a prosecutorial system, can improve the social, economic and political situation in Latin Amer ica. Without a doubt, many issues di rectly or indirectly tied to the legal system afflict Latin American nations. Nonetheless, as civilian rule returned to the region in the late 1970s, democratic stability a nd the future of democracy in the region became one of the greatest concerns in the international development agenda. In the view of the reformers, accomplishing democratic objectives was not possible under the inquisitorial system. The upsur ge of violence, extra-legal forms of justice, as well as declining confidence in the institutions of the last decade, helped reinforce the belief that JR was indispensable. The consensus among reformers was that the structural de sign of this colonial legal system promoted significant inefficiencies and delays in the criminal justice system and compromised some of the most fundamental democratic values (i.e. the right to due process, the rights of the victim, and the rights of the accuse d). Lack of adequate funding for the judiciary and its main branches was considered an important factor, yet the root of the problem was traced to the inquisitorial system. Hence, the only vi able solution was thought to be the complete elimination of the inquisitorial tr adition and a radical transformati on of its main institutions. This included the need to strengthen the rule of law by establishing an independent judiciary with checks and balances, and enough power to guarant ee the respect for cons titutional norms and regulations. The alternative at hand was the adve rsarial, prosecutorial system of the Western Industrial nations.


45 As this chapter illustrates, however, JR is a complex process that requires vast changes at different levels, including struct ure and legal culture. Even more problematic, different motives and interests drive the forces comprising this debate, questioning how fa r JR can move forward. In the next chapter, I address this topic in more detail, paying partic ular attention to the assumption that adopting an adversarial, prosecutorial model will help promote democratization in Latin America.


46 Table 3-1. Confidence in state institutions in Latin America 2004 Confidence Judiciary Confidence Government Confidence Political Parties Level of Confidence N % N % N % Not at All 6,632 37 7,274 40 10,278 57 Not Very 6,554 37 6,131 34 5,038 28 Fairly/ Some 3,433 19 3,319 18 2,025 11 Very/A lot 1,203 7 1,378 8 588 4 Total 17,821 100 18,101 100 17,929 100 Source: Latinobarmetro 2004. Those who answered "Don't Know" or did not answer the question have been excluded (Missing Values).


47 Table 3-2. Levels of satisfaction with democracy in Latin America 2004 Level of Satisfaction N % Not at All 3,860 23 Not Very 7,202 42 Fairly/ Some 4,492 26 Very 1,520 9 Total 17,074 100 Source: Latinobarmetro2004. Those who answ ered "Don't Know" or did not answer the question have been ex cluded (Missing Values).


48 CHAPTER 4 JUDICIAL REFORM AND DEMOCRA TIZ ATION: MEANS OR ENDS? Introduction More than ever before, the dem ocratization pr ocess as well as the future of democratic regimes in Latin America have been associated with the need to strengthen the rule of law. As a result, a regional and international movement for judicial reform in Latin America has emerged as a new development paradigm. In their efforts to empower the judiciaries and promote the rule of law in the region, the reform movement proposes to strengthen the administration of justice by establishing the adversarial, prosecutorial system of Western I ndustrialized nations and focusing on four main legal mechanisms: judicial i ndependence, judicial effectiveness, state accountability to the law through checks and balan ces, and citizens access to justice (Larkins, 1996; McAdams 1997; Hammergren, 1998; Pril laman, 2000; Ferrandino, 2003; Navarro, 2003; Domingo, 2004). Nonetheless, research and assessments of the cu rrent state of judicial reform in the region have begun to question whether reforming the lega l system is indeed conducive to democracy. Importantly, this concern has emerged from rese archers and scholars who support the reform, but do not agree with its approach. In their opinion, while enhancing the administration of justice is essential, it is not the same as promoting the rule of law. The bo ttom line, they argue, is that democratization is needed pr ior to undergoing a judicial reform (Carothers, 1999; Diamond, 1999; Psara, 2000; Popkin, 2000; Prillaman, 2000; Ungar, 2002; Navarro, 2003; Domingo, 2004).


49 This chapter explores this latter perspec tive by analyzing some of the experiences and results of the JRMs agenda with respect to the rule of law1. I concentrate on the three main aspects: efficiency, access, and judicial independence. I intend to show that, while many reforms and new mechanisms have been introduced, whet her they are actually be ing implemented is a completely different story. Indeed, resistance to the reform comes from various groups, whose actions hamper the proper functioning of the new system. Ironically, however, opposition comes primarily from actors within the judiciary itself, as well as from other members of the State2 and political institutions, whose powerful interests ar e jeopardized by JR. Thus, in the end, I contend that the rule of law is foremost a political ma tter that can only be attained through long-term consensus; to succeed it must therefore be an embe dded feature of a larger democratic process. Efficiency As discussed in Chapter 3, one of the reasons for the introduction of the adversarial legal trad ition has been the notion that this system can help enhance judicial efficiency. By introducing oral procedures and he arings, the burden of preparing written records is eliminated, rendering a lot of other bureaucratic procedures unnecessary as well. Additionally, the reforms have introduced the concept of timeliness, limiting the time a llowed for judges and prosecutors to manage cases and trials (Duce, 2007). At th e same time, by introducing the prosecutor as a new a actor in the legal realm, judges are no longer responsible for solving cases and can thus perform other duties, such as acting as the guarantors of constitutional rights, and contribute to a 1 Reforms evaluations are vast and complex and they come from an array of scholars, re searchers, lawyers and other actors, whose conclusions and evaluations sometimes coincide but other times differ. For purposes of this study, however, I have concentrated on the crucial components and issues found in a variety of literature available on the topic of judicial reform. 2 Today, the Sate has been commonly defined as a political community with national and international sovereignty, where an overwhelming consensus of its people exists to grant legitimacy to the system through the institutions. The State is structured by the division of power (although not necessarily equally) between three main institutional branches: The Executive (President), the Legislative and the Judiciary; each branch compromised of more of its own institutions (i.e. police, military) (Huntington, 1968: 1).


50 speedy judicial process overall. Taken together, a ll these changes help increase confidence in the judiciary and the rule of law in general, contributing to the legitimacy of state institutions. In reality, many of the componen ts designed to enhance efficien cy have been either partially or fully ignored by the actors responsible for im plementing them. For example, written procedures have not completely disappeared Records and files are still in writing and under the control of different legal actors. Some judges still allow the introduction of written reports and testimonies as evidence, as they would have d one under the inquisitorial legal order (Duce, 2007). Even more problematic, the lack of training and personnel forces the judges to continue dedicatin g their time to bureaucratic, administrative issues like signing doc uments and checks. In Ar gentina, Brazil, Peru and Ecuador, for example, judges spent 65% to 70% of their time in non-judicial tasks (Ratliff and Buscaglia, 1997: 64). Additionally, Latin Americ an pre-trials are still held in the traditional inquisitional manner. They still re ly on written motions and records, and place more weight on the testimony of the police than that of other actors. Prosecutors rarely make use of their discretionary power, and, in many case s both judges and prosec utors are reluctant to grant the accused their new rights (Carothers, 1999, Psara 2000; Popkin, 2000; Navarr o, 2003; JSCA, 2005). To complicate matters, the introduction of oral hearings and procedures has not been successful in eradicating certain illegal practices within the system. For instance, one of the main arguments in favor of JR was that the written nature of the inquisitori al model permitted judges to violate the right to a fair trial. The issue was that judge s would not even be present for the trial, but simply delegated the reso lution of cases to non-judi cial staff, such as clerks or assistants ( actuarios or secretarios ). Later, the judges simply signed th e necessary papers to validate the verdict, as if they had been in charge of the entire proce ss themselves (Duce, 2007). Hence, verdicts were often placed in the hands of pe ople who provided little or no knowledge of the


51 laws, violating the code of procedures and the ri ght to justice. Despite the introduction of the adversarial system with oral proceedings, today it is still commonplace for judges to delegate the resolution of cases to their staff. If the judge does not sign the transcript of the proceeding, the hearing is null and void. Yet, the absence of th e judge from the hearing does not affect its validity as long as the judge signs the transcript (Duce and Prez Perdomo, 2003: 73). All of these issues, therefore, have reduced th e positive impact on efficiency that JR was supposed to have. Consequently, these mixed findings point to a ma jor difference between JR in theory and JR in practice. JR has successfully made changes in paper, but it is not in itself sufficient to transform the legal culture preval ent in the region for 50 0 years of inquisitorial tradition, even if it is the modern legal system of advance Western nations. Access Access to th e system of justice through the cour ts is one of the most important components of the rule of law. Access to justice is premised on the idea that everybody has the equal right to justice and, in turn, that the just ice system is responsible for res ponding to the fulfillment of this right (Ferrandino, 2003). Theref ore, at the heart of the access to justice component is the notion of equality for all, a central democratic ideal. Likewise, access has been the center of attention in the last decade given the widespread phenomenon of citizen insecurity (described in Chapter 2). Consequently, one of the principal changes under JR is the creation of a public defense institution where citizens can have access to a lawyer at no cost While this component and its implications are essential for the proper implem entation of an adversarial justice system, basic mechanisms to ensure the necessary changes, nevertheless, remain poorly implemented (Ratliff and Buscaglia, 1997; Carothers, 1999; Di amond, 1999; Prillaman, 2000; Ferrandino, 2003). Follow-up studies to evaluate the reforms show that the goal for access to justice still remains far from a reality. One of the main problems has to do with the lack of efforts to actually


52 provide free defense for the accused. Funding for public defense lawyers remains scarce. The number of citizens in need of a lawyer outnumber available public defenders by the hundreds, making it very difficult to address peoples need s (Ferrandino, 2003; JSCA, 2005). Likewise, the non-judicial administrative matters that judges still manage under the new system (described above) further complicates the availa bility of access to justice. At the same time, availability of courts and court rooms remain poorly funded. K eep in mind that the introduction of oral proceedings inevitably creates the need for more courts, since it requires public hearings and trials. Thus, the lack of funding for courts is part icularly problematic in ru ral areas where lack of state presence and infr astructure has histor ically been the norm (Ferrandino, 2003: 78). Making matters worse, citizens in many rural and more isolated communities do not speak Spanish or, at least, not sufficient Spanish to be able to communicate with legal representatives. This problem partly explains ci tizens reluctance to report crim es and other problems, thereby creating a wider division between the citizenry and th e institutions of the law. This in itself is counterproductive to the establishment of the id eal of access to justice for all. Therefore, initiatives to expand access to th e system should also focus on resources for language interpreters (Ferrandino, 2003; Snodgrass Godoy, 2004). Nonetheless, it is important to recognize th at certain advances, such as implementing constitutional courts of justice, and tribunes for peoples defense ( las defensoras del pueblo ), have successfully extended access to justice in many places (Ungar, 2002; Ferrandino, 2003). Judicial Independence Despite the vital role that efficiency and acces s play in the administration of justice, it is said that the rule of law is nothing without judicial indepe ndence (Larkins, 1996; Ungar, 2002). The basic characteristics attributed to judicial independence are impartiality and independence. Impartiality refers to the notion that the judge s make decisions on a case based on the application


53 of the law and the facts, and not on who the litigants are, or, based on a preference for one of them. Independence, or political insularity, means that the judiciary is protected from being used as a political tool so that interest and power groups cannot us e it as a tool to advance their own agenda (Larkins, 1996: 609; Ungar, 2002). Nevertheless, Larkins (1996) is pa rticularly critical of the wa y political and legal scholars have assessed judicial independence in countries where judicial reform is taking place. He argues that, while judicial independence seems like an obvi ous trait to detect, in practice, procedures that undermine its autonomy are blurry (see Larkins, 1996; Ratliff and Buscaglia, 1997). Therefore, Larkins attempts to provide better tools to recognize and measure the presence or absence of judicial independence and its eff ectiveness. He proposes that, in addition to impartiality and independence, judiciaries must also have the power to act as separate entities detached from the State. Thus, a more accurate definition of judicial independence might look like something like the following: Judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartia l toward the parties of a dispute, and who form a judicial branch which has the power as an institution to re gulate the legality of government behavior, enact neutral justice, and determine significant constitutional and legal values (1996: 611; ital ics in the original). In short, judicial independence implies that the law supersedes everything and everyone, promoting the existence of a more egalitarian society where all ci tizens have the same rights and expectations, hence its importance for the performance of a democratic regime. Desirable as this goal may be, in practice, it has proven to be the most challenging aspect of JR. Several countries such as Argentina, Ecuador, El Salvador, Peru and Venezuela have passed minor reforms to grant some autonomy to th e judiciary, yet, none of the initiatives have been significant to actually allow its independence. The underlying obstacle in most countries has been that, despite the transition to democracy, the judiciary is still dominated by other


54 branches of government, especially by the Ex ecutive, which shows little change (Carothers, 1999; Diamond, 1999; Popkin, 2000; Prillama n, 2000; Ungar, 2002; Domingo, 2004). As discussed in Chapter 2, this practice has been part of Latin Amer ican history since the colonial era and, despite, various changes in the type of governme nt, it has continued to be the norm ever since. For example, studies on El Salv ador conclude that, despite ma ssive funding available from USAID and the United Nations, as well as other in ternational lending institutions, even the most basic technical reforms (such as introducing the oral system) took decades to be approved by the government. Later on, any efforts to grant the ju diciary more independence were hampered by members of the government itself obstructing any po ssibility of prosecu ting cases of human rights violations. In fact, according to reform ev aluators at JSCA, even though investment in the judiciary increased from 8% of the nationa l budget in 1997, to 19% in 2000, El Salvador continues to experience problems implementing major reforms. Popkin concludes that, a critical weakness of the reform effort [in El Salvador] was the failure to develop a broad national consensus or to win the support of members of th e judiciary (2000: 251; emphasis added). Ungar (2002) reaches the same disappointing conclusions after exam ining the issue of judicial independence in Ar gentina and Venezuela. His research revealed that, When such reforms are enacted, however, th ey are often not as effective as planned because of the very conditi ons that promoted them Executive power and judicial weakness then, limit reforms effectiveness. The executive rarely loses its determination to stock the judiciary with friendly judges, si de-lining new merit-base d procedures in the process, and practices such as patronage, favoritism and discriminatory prosecution are engaged into internal ju dicial functioning (2002: 142; emphasis added). In the end what this means is that the rule of lawthe central, if not defining, component of the current JRMis not possible unless the institutions and actors comprising the State as whole are willing to relinquish their pow er and cede it to the judicial branch (Larkins, 1996; Carothers,


55 1999; Diamond, 1999; Popkin, 2000; Ungar, 2002). Thus a democracy working to promote the rule of law is trying to pull itself up by its own bootstraps: the same offi cials and institutions it relies on are the same ones that obstruct needed change (Ungar, 2002: 2). Democratization and Judicial Reform Thus the relevant questions here are: Does th e judicial branch itself want to be reform ed? And, more importantly, given the strong roots of Presidentialism and submission of the judiciary to elite control, can judicial reform be achieve d without a democratizatio n process first? In the this last section I answer these questions, arguing that the obstacles to the implementation of a rule of law in Latin America represent much more than just administrative obstacles for judicial reform. Taken together, these findings suggest that democratization is no t a natural, guaranteed outcome of JR, but rather, an essentia l component of its implementation. First, the evidence presented from numerous case studies in different Latin American nations points out that, indeed, opposition to cha nge comes from the judiciary itself as well as from the rest of government and political bran ches, historically accustomed to utilizing the justice system as a tool to advance their own agendas. These studies emphasize how, in practice, the institutionalization of the rule of law ultimately entails the submission of the state (Larkins, 1996: 606; Ca rothers, 1999; emphasis added). These affirmations make sense since, af ter all, the rule of law promoted by judicial reform implies a major transformation of the State power structure. Introducing checks and balances in the scheme of government, as well as accountability techniques, are both methods that will insert greater control of state actors. These changes inevitably cause unease among the elite groups and government officials whose acti ons and decisions within the system will be more scrutinized (Domigo, 2004; Portes, 2006).


56 This is especially the case in Latin America and other LDCs, where the judiciary has long been subservient to the Executiv e and power elites. Consequentl y, as numerous studies suggest, achieving effectiveness, access and judicial independence (the esse ntial components for the rule of law and democracy) is a political and institu tional matter that depends on the willingness of the state and its actors to achieve a longterm consensus that allows JR to happen (see Carothers, 1999; Diamond, 1999; Psara, 2000; Popkin, 2000; Prillaman, 2000; Ungar, 2004). A negotiated consensus is at the heart of the process of democr atization itself. As Huntington points out, How were democracies made? They were made by the methods of democracy ; there was no other way. They were made through negotiations, compromises, and agreements. They were made by political leaders in governments and oppositions who had the courage both to challenge the status quo and to subordinate the immediate interests of their followers to the longer-term needs of demo cracy. They were made by lead ers in both government and opposition who withstood the provocations to violence of opposition radicals and government standpatters. They were made by leaders in government and opposition who had the wisdom to recognize that in polit ics no one has a monopoly on truth or virtue. Negotiations and compromise among political elites were at the heart of the democratization processes (1991: 165; emphasis added). Since JR has been hampered by a lack of consensus among state and judicial actors alike, the situation reveals that the root of the pr oblem of JR implementation is an incomplete process of democratization Therefore, the issue with the current JRM approach is that it assumes that democratization is a natural, automatic, guaranteed outcome of the reform when, in reality, democratization is the means through which the rule of la w can be consolidated, since, democratization, among many other things, means consensus. Even more challenging, Larry Diamond (1999) concluded that democratic consolidation is actually a pre-requisite for judicial reform; and Prillaman criticizes Hammergren and other researchers theo ries and assumptions on judicial reform. Prillaman states that their theo retical models do not fully explain the role JR plays in democratic consolidation, if it plays one at all (2000: 4).


57 Conclusion Although an efficient, accessible, transparen t justice system capa ble of protecting and responding to the needs of all citiz ens alike, sounds like desirable, collective ideal, interests and politics continue to interfere in its materializ ation. Inevitably, strengthening the rule of law implies changes in the organiza tion of the legal structure and as a consequence, a different distribution of power among its actors. These changes cause unrest among elite groups and government officials accustomed to influence the judiciary to protect their interests. Given the historical traditi on of the strong executive, the situation is particularly challenging in Latin American nations. Country case studies have show n how, despite to the return to civilian rule, the balance of power has not been altered in most Latin American countries. Nor have values associated with democracy permeated the political elites or the state actors, whose interest conti nue to hamper progress in the region. According to Domingo, Judicial reform has been undertaken with singular enthusiasm th roughout Latin America, but with disappointing results. Reform objectiv es have been a mixed bag, with varying degrees of political commitment and consen sus, and different emphases on the range of issues that have been brought under the um brella of judicial reform (2004: 118). Thus, a deeper democratic embeddednessthe re forms assumed goalis precisely what is still missing in order to implement the reform itself. Moreover, the research and eval uation here presented point to two basic conclusions: a) the judicial system must have been working properly for some actors and/or for certain interests in particular; and b) the willingness of those benefi ciaries of the old system to allow for a more transparent, accountable judiciar y remains doubtful at best. In fact resistance comes from the judiciary itself, as well as from the state as whol e. How else do we explain centuries of neglect of the administration of justice? After all, the i nefficient inquisitorial legal tradition of Latin America has, despite minor reforms, remained virtually unchanged for over 500 years


58 Democracy, on the other hand, has been repeatedly interrupted by authoritarianism, even in this last wave of democratization that took place only a few decades ago (see Valenzuela, 2004). Therefore, although Latin American nations ma y be governed by elected representatives, democratic values and practices have not been fully implemented. In the section that follows I provide a closer analysis of these issues by showing results from interviews conducted to key legal actors in Quito, Ecuador. Their perceptions of JR in the country illustrate that obstacles to the strengthen ing of the rule of law in the country represent much more than just obstacles to JR.


59 CHAPTER 5 COUNTRY CASE STUDY: ECUADOR Introduction To illus trate the dynamics of judicial reform in Latin America, this final chapter focuses on the case of Ecuador. The Ecuadoria n experience with judicial re form, with its accomplishments, challenges and assumptions, is a good example to represent many of the themes discussed throughout previous chapters, part icularly the assumption that JR will bring democratization. Also, this is a good way to provi de a closer picture of JR in the rest of the region. I chose to work on the case of Ecuador for two reasons. First, Ecuador is one of the countries where the vast dysfunctions and issues plaguing its judiciary have been unveiled more than ever before in the last d ecade. Citizen insecurity and extralegal forms of justice, such as lynchings, have become generalized; and large, nation-wide social movements demanding government responsiveness continue to emerge (Prillaman, 2003: 8; Snodgrass Godoy, 2004; see El, 2006). Likewise, even though Ecuador initiated the third wave of demo cratization when the last military coup stepped down in the late 1970s it has also proven to be one of the most unstable nations with several democratic regime s overthrown. Nonetheless, Ecuador initiated JR efforts back in the 1990s, and continues to work on these endeavors today. Given these circumstances, therefore, Ecuador is an interes ting case to examine the development of a JRM. The case study that follows is the result of research conducted in Qu ito, Ecuador during the Summer of 2007. I conducted semi -structured interviews usin g a grounded theory approach (Corbin and Strauss, 1990) with key legal actors from a variety of sectors: law school students, law professors, litigants, Ministers of Criminal Ju stice, private sector lawyers, lawyers working in public ministries, representatives of the Suprem e Court of Justice, and representatives of the Tribuna Ecuatoriana de Consumidores y Usarios (Ecuadorian Tribune for Consumers and


60 Users). All of my interviews lasted a minimum of an hour and in some cases I was lucky enough to have been granted more time. Following rule s and guidelines of the Internal Review Board (IRB) of the University of Florida, identitie s of interviewees will remain confidential. Since there are numerous topics and issues under the umbrella of judicial reform, for purposes of this study, I here provide a summary of my findings. I depict common themes brought up by different actors duri ng the interview process so that information remains concise, as well as consistent with the topic of judicial reform and democratization discussed in previous chapters. The advantage of doing so is that it will show how there are common concerns and opinions among many different actors and how these ar e crucial to the study of judicial reform. This will help readers concentrate their atten tion to the most relevant issues as well. Additionally, it is worth emphasizing that my ques tions did not direct at tention to technical or administrative matters of JR. I concentrated on legal actors perceptions of judicial reform in the country since, as I have ar gued earlier, the problem with th e reforms is not so much to include them in the books, but to actually enact them and put them into practice. Moreover, my interviews were semi-structured which allowed all the respondents to talk freely about the issues they thought were important as well, minimizi ng any biases that might misguide the conversations because of the researchers bac kground or ideology. Allowing the interviewees to include topics or expand on them, turned out to be very valuable because legal actors perceptions of institutional change are first-ha nd information that unveil how the concept of judicial reform is being processed in the nation. After all, the reform is in part targeted to all of these actors. Their reaction has a lot of influen ce on the future of the JRM in the country. Thus, by interviewing legal actors themse lves, one can get a be tter appreciation of what is taking place during the reform process, and what are the unsp oken, unwritten issues in the legal realm that


61 have the potential to either promote change or hamper it. Before I turn to this topic I briefly discuss the historical legal and political back ground of Ecuador in order to have a better understanding of the context in which j udicial reform is being set forth. Ecuadors Development Path Ecuador, once a part of the Spanish Em pire, sh ares with Latin America that history of highly centralized political organization. Along with Venezuela and Colombia, present-day Ecuador was part of the viceroya lty of New Granada, of which th e city of Quito was one of its audiencias, or advisory councils. These advisory councils where composed of president-judges, appointed judges, and corregidores or mayors, who were the local -level governors. Moreover, history tells us that these counc il posts were notorious for corr uption and dictatorial attitudes. Thus, like much of the rest of Latin America, Ec uadors early political path was characterized by an authoritarian central power where the Spanish and criollo elites (sons a nd daughters of the first Spanish settlers) ran the country at thei r pleasing (see Chapter 2) (Vanden and Prevost, 2006). Despite the break from Spain the political organization in the pos t-independent period represented more of a transfer of power from the Spanish Cr own to the local elites, who managed the territory. Thus, concentration of power in the hands of a few continued to be the norm. As it has been the case in most of Latin Am erica, Ecuador shares a culture of the strong Executive, fueled by caudillismo where the judiciary branch s ubdues to its power (see Chapter 2). Nonetheless, throughout the 20th century, Ecuadors trajectory continued to experience several obstacles. Military take-overs, the upsurge of populist regimes, plus a lack of consensus between the Congress, the Presid ents and the elites, have been the norm. Indeed, one of the major characteristic of the Ecuadorian case has b een a very strong region al division between the


62 Sierra (the Andean region) and the Costa (the tropical zone in the Pacific). According to Thorp, each region had a strong life of its own, a feature that further w eakened the countrys ability to reach a national consensus in a variety of issues (1998: 83). Javier Santiso, in his evaluation of Latin Americas path to development, labeled Ecua dors as a more erratic trajectory (2006: 7). In more recent history, however, the picture does not look more encouraging. In 1990 Ecuador, along with the rest of Latin America, initiated trade li beralization policies. It opened up its economy by eliminating tariffs and privatized former state-owned enterprises. In 1992 more stabilization policies, especially those concerni ng debt-repayment and cuts in social spending were underway (Thorp, 1998: 128). Consequentl y, Ecuador embarked to the neo-liberal economic package, reducing the role of the state and le tting the Market dict ate the rules of the game, and thus conforming to what Sunkel cal ls acceptable by American standards (Thorp, 1998; Sunkel, 2005; Santiso, 2006). Nevertheless, as with many other changes in the past, these Structural Adjustment Programs (SAPs) were not as easy to institute in Ecuador as in other countries. While there were the radical stabilizers (using Thorps term) lik e Argentina, Bolivia, Chile, Mexico, Peru and Uruguay; Ecuador proved to be a more challenging case (1998: 262). The interest of traditional export elites continued to be an obstacle to th e passage of new policies. However, so was the widespread popular unrest caused by the threat to remove subsidies and reduce salaries. To complicate the situation, an inefficient Congress that was more preoccupied with political power than to working for the country, contributed to a weak democracy where there was little room for consensus in order to pass legisl ation (Thorp, 1998: 262). With each presidency, economic as well as polit ical deterioration worsened, culminating in a sequence of extreme political instability. Ecuado r has seen a total of 10 presidents in only 12


63 years (Thorp, 1998; Valenzuela, 2004)1. As Arturo Valenzuela illustrates in his article Latin American Presidencies Interrupted (2004), Ecuador is not alone in this regimeoverthrowing trend, but it has proven to be one of the most unstable democracy, with the most number of presidents deposed from office. This widespread discontent with the democracy and the most crucial state institutions, including the judiciary and the government in general, are confirmed by the data on Ecuador in the 2004 Latinobarmetro survey. Table 5-1 displays the results of a frequency distribution of responses to a questions regard ing confidence in Police, Judici ary, Government and Political Parties in Ecuador for the year 2004. Almost a 73% of respondents have little or no confidence in the police; almost 86% of Ecuador ians have little or no confiden ce in the judiciary (alternatively, only 163 people out of a total sample of 1,187 have a lot or some confidence in the system); 11.2% have a lot or some confidence in the gove rnment; and a bare 6.3% of respondents have a lot or some confidence in the political parties. Evidently, the data show low regard for the key institutions in the country. Figure 5-1 provides a better pict ure of the overall satisfacti on with democracy in Ecuador. A frequency distribution of responses to the 2004 Latinobarmetro questi on shows that 86% of respondents are either not at all or not very satisfied with the way democracy works in their country. Importantly, a mere 1% of people repl ied that they are very satisfied with the democratic system of governance. So given the focus of this project on the process of democratization as essential (and for some even a pre-requisite) for judicial reform and given the low levels of confidence and 1 Valenzuelas article on 2004, does not include informa tion on the latest civilian coup, where former President Lucio Gutierrez was overthrown, and replaced by the Vice-President, Alfredo Palacio. Since then, new elections took place, giving the presidency to 43 y ear-old economist, Rafael Correa. Thus a total of 10 presidents have been in power in a lapse of only 12 years.


64 satisfaction with democracy and its institutions, what has been the Ecuadorian experience with a change in its legal system? In the section that fo llows I discuss this topic in more detail. I begin by providing some information about the reform pro cess itself, to later con tinue to discuss what my interviews on the subject revealed. Judicial Reform in Ecuador: Perceptions of its Legal Actors In Decem ber 1993, the Ecuadorian government disc losed its first signs of intention to reform the judicial system by passi ng the State Modernization Law ( La Ley de Modernizacin del Estado ). It stipulated the need to reform th e administration of public entities, including judicial reform, as part of its age nda (ProJusticia, 2007). Later on, on August 30th 1995, by Executive Decree, the Unidad de Coordinacin para la Refo rma de la Administracin de Justicia en el Ecuador (ProJusticia) (Coordination Unit for the Reform of the Justice Administration in EcuadorProJustice), was create d as an entity ascribed to the Ecuadorian Presidency. Two years later, on April 1997, ProJustic ia was ascribed to the Presidency of the Supreme Court of Justice (ProJusticia, 2007). Th e World Bank and the International Monetary Fund (IDB) were the two main entities that s upported the reform efforts in Ecuador. They provided financial support with grants and lo ans, under the label of technical cooperation (Projusticia, 2007). Nonetheless, passing these modifications a nd implementing these small projects was a lengthy process. It took Congress an entire decade to agree to pass the legislation to implement JR. With respect to criminal justice, when the le gislation to approve its reform passed in January 13th 2000, instead of allowing for a gr adual process of change (as had been the recommendation), Ecuadorian legislators decided to introduce all the new codes of procedure needed for the reform, and fully implement the oral, accusatorial system. As a result, on June 13, 2001, only a


65 year after the legisl ation was passed in Congress, the new syst em formally went into force in the in the entire country (Zalameda, 2005: 76). Ecuadors trajectory with the reform conti nues to experience difficulties. The principal problems are related to an inadequate norma tive design, an almost complete lack of implementation, and the serious institutional problems that it has confronted in the last few years (Duce, 2005: 10; emphasis added). For exam ple, it does not allow for prosecutors to make use of their discretionary powers, one of the ba sic components of the adversarial system, and one of the most advocated reasons for arguing JR c ould help alleviate the systems overwhelming workload. In addition, Ecuador has the lowest numb er of prosecutors per person compared to the rest of Latin American nations that have adopted the new advers arial system. As of 2004, there were only 2 prosecutors per 100,000 i nhabitants. Similarly, there is almost no training available to prepare people in the system to fulfill their roles and duties, as well as a lack of infrastructure and necessary technology for the proper func tioning of the judiciary. Finally, although the availability of a public defense office is vital for access and efficiency to the justice system, up until 2005 (decades after the JR of the criminal system entered into force) there was still no Public Defense Office in Ecuador (JSCA, 2005: 190; Zalameda, 2005). Not surprisingly, therefore, according to Zalameda, the current legislation for reform lacks pragmatism (2005: 76). As in many other Latin American nations under judicial reform, the actors involved in the system continue to exhibit behaviors and proced ures that were more in tune with the old inquisitorial order. For example, written procedures still outnumber oral procedures, oral trials are not taking place even though the legislation stipulates they mu st, there is no free-assessment of evidence (certain testimonies and evidence are given more weight than othersas was the case


66 in El Salvador with the police testimonies), and basic tools such as cross-examination and objections are not being util ized (Zalameda, 2005: 77). Nonetheless, these obstacles are much more complicated than administrative deficiencies or system inefficiencies, because it means that th e system is disorganized, that the reforms are not being implemented or followed, when these were, in fact, the same problems the reforms were supposed to alleviate in th e first place. In 2004 alone, for example, judges faced an average case workload of 4,033. Of those, only an aver age of 16% were clear ed (JSCA, 2005: 190). When I interviewed one of the Ministros de lo Penal (Criminal Justice Ministers), I asked his opinion of the changes in the new criminal ju stice system. Specifically, I asked if he agreed that judicial reform could help alleviate many of the issues a fflicting Ecuador and Latin America in general. He responded, A partir del 2000 tenemos el codigo de proced imiento penal que es acusatorio y ya no inquisitivo. De modo que la situac in vari totalmente a partir de ese cdigo. Para mi ese cdigo se dio a partir de una situacin mas bien externa y creo que los resultados, que es una aculturacin, una mezcla tal; que se confunde n los sistemas. Lo cual es lgico porque si nosotros tenamos un sistema inquistivo durant e tantos aos en donde las cosas se hacan ms por escrito y no oralmente, el cambiar de un momento a otro trajo una serie de problemas por que la gente no estaba preparad a. Ni los jueces, ni los abogados, ni las entendan tampoco los jusiticiados. De m odo que se produjeron problemas muy serios y todava, a pesar de que hay muchas materias en las que s ha dado buenos resultados, sobre todo en que dio la oportunidad de ser escucha do en los juicios, bueno en teora, pero yo creo que la impunidad ha subido. Por que las de nuncias que se presentan en las fiscalas llegan a tal nmero que es un porcentaje m nimo el que llega a establecerse en la instruccin y menos todava a juic io. De modo que decir que hemos ganado(pausa).S, relativamente por que estamos modernizados pero no necesariamente en mejor situacin. Beginning in the year 2000 we ha ve the criminal code of procedures, which is part of the adversarial system, not the inquisitorial a nymore. Therefore, the situation changed completely after that code [was passed]. In my opinion, that code was more the result of external situations, and I think that the result s are an acculturation; such a mix, that in the end the systems are simply confused. Which of course makes sense because if we had an inquisitorial system for so many years, in whic h things were done in writing and not orally, the sudden change [to a new system] brought a series of problems because people were not prepared. Neither were the judges, nor the lawyers, and not even the accused understood [the changes]. Thus, the problems created have been very serious and today, despite that


67 there are a lot of other mattes in which there ha s been in fact an advance, especially that there is now the opportunity to be heard in a trial, well in theory at leas t, but I think that impunity has actually increased. Because the number of reports that are presented to the fiscals reach such high that only a minimal perc entage actually get to be established for instruction, and far fewer to actually go to trial. So, have we accomplished anything?..(pause).Yes, relativ ely because we are modernized, but not necessarily in a better situation (emphasis added). I asked the Minister to clarif y what he meant about external situations and modernized but not in a better situa tion. He responded that, La presin externa se dio bsicamente de la embajada (The external pressure basically came from the embassy). He meant, the United States Embassy. Also, he told me that by modern ization he meant that it was a just a more modern system of justice and th at it is used by the US and Eur ope, but that the system had not necessarily helped alleviate th e already existing problems under the old, inquisitorial system because, El establecer normas tan drsticas nos oblig a a nosotros a despachar dejando a un lado todo lo dems, muchas veces se van con errores por que no hay tiempo para atender todo as. Tomando en cuenta que 50 juicios sema nales no pueden ser atendidos, muchas veces no son ni ledos. El sistema funciona sin que haya los medios. No tenemos los medios necesarios. Tan es as que las audiencias, lo id eal sera que haya algo en la corte suprema y se tenga los videos de declar aciones de los imputados de la s partes. A lo mucho tenemos una grabadora comn y corriente donde se grab a, pero solo las voces. Pero no tenemos los medios y no los vamos a tener por que ev identemente eso significa que el gobierno aumente los recursos para la funcin judici al. Pero en el ltimo presupuesto, en vez de subir, baj. As que dentro de esas enor mes limitaciones no se puede tener un eficiente sistema y aunque ha habido mejoras evidenteme nte, todava tiene de largo por haber un cambio. Establishing such drastic norms forces us to dispatch [cases], leaving aside everything else. Often times, they are sent out with mistak es because there is no time to take care of everything. Taking into account that 50 trials per week cannot be attended. Often times they are not even read. The system operates without th e resources. We do not have the necessary resources. The situation is such, that in the hearings, the ideal would be to have something in the Supreme Court and to have th e videos of the testimonies of the accused and the parties. We barely have a regular, simple tape recorder where the voices are recorded. But we do not have the resources and we are not going to have them either because, evidently, that means that the gover nment will need to in crease funding for the judicial function. But in the last government budget, instead of increasing, it decreased.


68 So, with such big limitations we cannot have an efficient system, and even though there have been some improvements, evidently, we still have a long way to go (emphasis added). A good example of the disorganization and lack of technological support for the reforms, came up during my interview with one of the leaders of the Ecuadorian Tribune for Consumers and Users. A well-established lawy er and active member of this en tity expressed her concerns on this issue. She told me, Pero de qu te sirve el sistema acusatorio si no generaste ni la es tructura, ni la ms mnima tecnologa para que funcione el sistema acusatorio? Entonces el gobierno americano se comprometi con el Ecuador Les dio una donacin importante y mand gente para que pruebe y regalar las mquinas. Pero tenamos un ministro fiscal que no hacia nada y ah los americanos dijeron no. Y ah qued. Entonces qued a medio hacer y no hay salas para que se atienda al acusado, ni tecnologa, enton ces ah qued todo. Es terribleterrible. No tienes la ms mnima facilidad ni agilid ad. Despus de una batalla de casi 15 aos se logr que casi todos los juzg ados tengan computadoras. Entonces algunos todava usan mquinas de escribir y eso en Quito Cmo ser en provincia. Si vas a la corte superior de justicia, ves que hay en cada piso ministros que tienen salas cmodas pero los tres tienen una seorita que trabaja en la sala con ellos. Y ellos les pagan del mismo sueldo de ellos para que escriban por que ellos no saben usar la computadora! But of what use is the adve rsarial system when you did not generate the infrastructure, nor the minimum technology so that the judi cial system works? So, the American Government committed itself with Ecuador. They gave [Ecuador] an important donation and sent people for trial programs and gave machines (computers). But we had a Fiscal Minister that did not do anything and so then the American s said no more. And it was left there. So, it was only halfway implemented a nd there are no rooms to take care of the accused, nor the technology. So it was left there. Its terrible, its terrible. There are not even the minimal facilities or promptness. After a battle of almost 15 years, they were able to have computers in almost every court. S o, there are still some who use type writers and this is in Quito! Imagine how it must be like in the rest of the provinces. If you go to the Superior Court of Justice, you will see that th e ministers have comfortable offices in each floor. But all three of them [in each floor], have a young lady who works in the office with them. And the ministers themselves pay these young ladies from their own salary for them to type stuff for them, because they [the mi nisters] do not know how to use a computer! These same concerns and air of disappointment was shared by a member of the Unit of the Reforms of the Supreme Court of Justice. I as ked him about Ecuadors situation regarding the judicial reform, and in term s of supporting it. He replied,


69 Por un lado, las dificultades son la falta de apoyo financiero, no. No se da prioridad a estos temas. La funcin judicial pidi o presupuest un monto de alrededor de 800 millones de dolares para su presupuesto del ao 2007 y recibi 140 en realidad. Entonces un poco menos de la mitad de lo que pidi. Co n lo cual quiere decir que su presupuesto esta financiado con las justas para temas operativos. Todo lo nuevo, todo lo que es de las reformas, de crear juzgados, que hacen falta y aunque no son la principal solucin, pero hacen falta. No se puede. On one hand, the difficulties are the lack of financial support, ok. There is no priority given to these topics The judicial branch requested or budgeted a sum of around $800 million dollars for its 2007 budget, and it recei ved $140 millions in reality. So, a bit less than half of what it requeste d. Which means that its budget is barely financed. We barely have enough for operational tasks. All the new st uff, all that related to the reforms, creating courts which is needed, although they are not the solution, but they are needed. is not possible (emphasis added). The lack of financial support for JR is evidenced in the amount invested in justice, relative to that of the rest of the economy. According to the Report on the Judicial Systems in the Americas from JSCA, the 2005 budget for the justice sector in Ecuador represented less than 2% of the total fiscal budget for that year (2005: 190). As I carried out my interviews I found that concerns and disappointments with the legal system where indeed widespread. The chain of pr oblems afflicting the judi ciary and the rule of law in general, came up in every one of my inte rviews. One area of concern lead to another. There was a general feeling that the problems associated with the reform, as well as the changes needed to improve the situation, were overwhelm ing. However, as I wanted to know specifically their perceptions of the reform as a developmen t tool, I inquired how they viewed the matter. I asked one of the lawyers if she thought that judicial reform, in the long run, could help achieve social, political and economic development. Her response was, Si es cierto. Bueno, de cierta forma. Lo que pasa es que tambin hay situaciones ms profundas de inequidad que estn en la sociedad y en lo que es la parte econmica. Y s est relacionado con el tema de justicia por que de cierta manera a la gente que maneja la economia tambin le interesa manejar la justicia Por que la justicia es la forma en cmo se debe impartir la justicia. Y eso puede imp licar que se afectan beneficios o perjuicios para quienes manejan el poder. Entonces de ah para abajo empieza el deterioro por que todo el mundo se considera con derecho a justic ia, pero no de una manera positiva, slo


70 para su propio beneficio. Entonces yo s creo que la inequidad en el Ecuador est vinculada al mal funcionamiento de la justicia, por que como el poder est concentrado en pocas manos, y ese poder econmico y poltico tambin se mete en lo que es la justicia. Entonces hay gente que esta por encima del bien y de l mal. Por encima de las normas, que puede burlar la ley. Entonces yo me pregunto, el problema esta en los cdigos, o en cmo esta estructurado el poder y la justicia? Entonces a m me parece que quienes estn peleando por esta situacin, estn mas bien curando la fiebre en vez de la enfermedad. It is true. Well, in a way. The thing is that there are also more profound situations of inequality in society and in th e economic aspect. And it is rela ted with the topic of justice because in a way the people who manage the ec onomy are also interest ed in controlling the justice [system]. Because justi ce is about the way th at justice is distributed. And that can affect the benefits or bring losses to those who control power So from there down begins the erosion because everybody considers him or hers elf with the right to justice but not in a positive way, but only to their own benefit. So I really do think that inequality in Ecuador is linked to the malfunctioning of justice, since power is concentrated in a few hands and the economic and political powers al so interfere w ith the justice So there are people who are above good and evil. Above the norms. Who c an mock the law. So, I ask myself, are the codes the problem? Or is it the way that power and justice are struct ured? So I think that those who are fighting for this situation [the re form], are taking care of the fever but not of the sickness (emphasis added). This respondents answer is particularly insightful. Using a metaphor, she illustrated how introducing a new legal system is only addressing certain aspects afflicting the countrys judiciary. However, new codes or new procedures are not addre ssing the more fundamental need of justice in the country, the true proble m or sickness troubling the nation. When I asked the same question to a corporate lawyer, he responded, Eso tiene ms que ver con la crisis econm ica. Con la crisis hay ms violencia. Lamentablemente yo creo que la globalizacin ha afectado en ese sentido. Adems se trata de hbitos culturales.tendencias que se tras tmite por medios y est permanente en la cabeza de la gente. Influencia de la cultu ra mundial, medios de comunicacin. Pero tambin la parte econmica ya que el tene r menos acceso a las cosas provoca situaciones de violencia. Ya sea por que la gente ve a qu puede acceder y a qu no puede, y la frustracion tambin provoca violencia. Est vinculado tambin a la informacin y la parte econmica... No se trata de ms leyes, si no de tratar de que las que ya se tienen se cumplan. That has more to do with the economic crisis With the crisis there is more violence. Unfortunately, I believe that globalization has aff ected the situation in that sense. It also has to do with cultural practices as well. It is transmitted by the media and it is permanently in peoples minds. But also the economic side, because the lack of access to things provokes violent situa tions. It is also linked to information and the economic


71 situation It is not about more laws, but to try that the ones that we already have are respected. Similarly, a young female lawyer, working fo r the one of the government ministries replied, La reforma trajo un montn de cambios para dar ms derechos a los ciudadanos. Trajo ms leyes. Trajo un marco legal donde todo est estipulado paso a paso. Como te digo hay miles de leyes y tu ves y las leyes son maravi llosas. Te dicen todo, pa so uno, dos, tres, el respeto, derecho a esto, y tienes derecho a esto y mentira! En la realidad no es as. No pasa nada de eso. El problema no est solo en la estructura legal. No necesitamos ms leys, sino un cambio en la justicia social. The reform brought a lot of cha nges to give more rights to citizens. It brought more laws. It brought a legal framework where everything is expressed step by step. As I was saying, there are a thousand laws and you look and see that the laws are wonderful. They tell you everything, step one, step two, about respect, you have the right for this and the right for that and Its all a lie! In reality it is not like that, nothing happens. The problem is not just in the way the justice system is structured. We do not need more laws, but a change in social justice. Once again, the last two responses illustrate the idea that JR is not sufficient to solve the vast range of issues in Ecuador. A lack of legal framework is not the real problem; and incorporating more laws is not the solution to the actual problems either. Both legal actors identify other issues, such as economic hardship s and injustice (in a broa d sense), as the true problems associated with the legal system. They mention the need to make both the laws and peoples rights respected, and not for them to just figure in the books as part of poetic language. In other words, JR may change the legal system into an adversarial order, but it does not mean that it will, by itself bring the rule of law. Underlying th is discussion is thus, the confusion between development means versus development ends. Moreover, the introduction of a new legal syst em implies a different organization of the legal structure and as a conseque nce, a different dist ribution of power among its actors. This is especially the case with the contemporary judicial reform movement in Latin America where the new system looks for more independence for the legislative body, historically controlled by the


72 executive. Likewise, it calls for the revision of the distribution of checks and balances in the scheme of government, as well as for greater accountability and transpar ency of legal actors. These changes inevitably cause unrest among elite groups and government officials whose actions and decisions will be more sc rutinized (Domigo, 2004; Portes, 2006). Indeed, this is the situation currently hinderi ng the Ecuadorian JR efforts. According to one of my interviewees at the Supr eme Court of Justice, whose job is precisely to implement the reforms, it should not be surprising that resistance to change comes from within the legislative body itself. He told me, Curiosamente la primera resistencia es al inte rior mismo de la funcin judicial. Y es la ms complicada, la que ms obstculos genera por que que los propios jueces se opongan a la reforma, evidentemente genera graves problemas prcticos. Y claro,fortalecer la justicia tambin significa lim itacin de poder y fortalecer la independencia judicial, y no siempre el poder est dispuesto a esas limitaciones. Entonces la reforma incomoda. Interestingly, the first sign of resistance comes from within the judicial body itself. And it is the most difficult one, the one who brings more obstacles, because the fact that the judges themselves oppose to th e reform evidently causes di fficult problems in practice. And of course, strengthening the justice sy stem also means limitation of power and strengthening judicial independence. And thos e in power are not always willing to accept those limitations. So, the reform causes uneasiness. In the case of the judges, their resistance come s primarily from the f act that they no longer have control over the investigation process, wher e they alone had the power over the entire case. With oral hearings they are now more accountab le for their decisions. Likewise, the introduction of the oral tradition implied their return to acad emies where, after years of legal practice, they have to learn a whole new procedure all over again. As Messingers study of social movements revealed decades ago, organizations and movement s [have] been torn between those who wish to remain loyal to the original function and those who put organizational imperatives first. If the latter are successful, the dominati ng orientations of th e values of the orga nization is taken to


73 represent, to maintaining the organizational structure as such, even at the loss of the organizations central mission. (1955:10; italics in the original). Resistance to JR also comes from the governme nt and political branches as well, because they have been accustomed to using the judiciary as a political tool to push for their own agenda. Indeed, using the judiciary as a political tool is a deep-rooted practice in Latin America, and one hard to get rid off in places where democratization is still weak (Thome, 2000; Domingo, 2004; Prillaman, 2000; Portes, 2006). In the case of Ecuador, a sign of the severity of such practice was recently evidenced in December 2004 when former President Lucio Gutir rez used the judiciary to make a political move by replacing and later dissolv ing the Supreme Court of Justice. The allegations were that he was favoring a particular political party, the PRE ( Partido Roldosista Ecuatoriano ) so that former President Abdal Bucaram could return to the country without be ing tried for corruption charges (JSCA, 2005: 190). These perceptions of abuse of power are not found only within the legal system. Unfortunately, it is a widespread belief among all Ecuadorians that the government and the system in general, only serves its own inte rest groups. Peoples needs are left as the last wheel of the cart. Figure 52 confirms this trend. Figure 5-2 shows the results of a frequenc y distribution ran on a 2004 Latinobarmetro question that says: In general, would you say that the country is governed for the benefit of a few powerful interests or is it governed for the good of everyone? The respondents options were: It governs for: The Benefit of powerful interests, or, For the good of all. Those who answered Do not know or did not answer have been excluded. The results show how an overwhelming 80% of Ecuadorian respondents believe that their government rules for the benefit of powerful interests.


74 In the same manner, a representative of the Supreme Court of Justice in Ecuador considered that state support and leadership for a real change was the vi tal component for a JR success. He told me, Tiene que haber un liderazgo institucional para poder superar esas incomodidadestodo el mundo se queja. Entonces internamente hay que superar dificultades. Es decir, si no hay consenso, no van a poder arreglar las cosas There needs to be institutional leadersh ip to be able to move on from that uneasinesseverybody complains. Therefore, we need to overcome internal difficulties. In other words, if there is no consensus, things will not improve (emphasis added). Clearly, his response echoes those of many JR researchers cited in this text, such as Carothers (1999), Prillaman (2000) and Ungar (2002); whose experien ce in the field show that without consensus at the government level, a tr ue process of JR is simply not possible. Finally, although Supreme Court of Justice and ProJusticia st ate that the reforms are a national priority, my interviews with the memb ers of these institutions suggested otherwise (ProJusticia, 2007). During my interview with a repr esentative of the Unit for Judicial Reform at the Supreme Court of Justice this very same point came up. I was told, Creo que no se han logrado hacer todava ha cer de la reforma judicial una poltica de estado. Una poltica sostenible Y no solo con pequeos eventos y financiamientos, importantes que nos han dado su aporte, pero que no responden a un ve rdadero proceso de fortalecimiento institucional. Y creo que ese tema tambin responde a la fortaleza democrtica. Tanto en las lites polticas, como en la manera en que funcionan las instituciones o en la manera en que se quiere que funcionen las instituciones. I do not think that we have been able to make of judicial reform a state policy. A sustainable state policy. And not just with small events and fi nancings, important of course because they have given us their support, but that do not respond to a true process of institutional strengthening And I think that that topic is also related to democratic strengthening, both in the political elites as well as in the manner that the institutions work or how we would like them to work (emphasis added). As I carried out the interview with this repres entative, and all the issues with the reforms were discussed, the need for democratization in or der to carry out an appropriate, successful JR was more evident. The Supreme Court of Ju stice representative concluded by saying,


75 Entonces creo que falta en el Ecuador esa poltica pblica, esos compromisos de estado, para mejorar los servicios. Y luego tambin hace falta una mejoramiento de la actividad poltica en su conjunto. Que se permita un desa rrollo institucional de acuerdo a las normas constitucionales. Por que sucede que las prc ticas polticas en el Ecuador todava son prcticas que no responded a la constitucin, si no a fuerzas y a equili brios y desequilibrios de poder. No tanto de aplicacin normativa, entonces todava ha pasado en nuestra historia muy reciente que el Congreso, rgano po ltico, o el Ejecutivo, rgano poltico, toma decisiones, en funcin de sus posibilidades de poder y no en funcin de la normativa constitucional. Y evidentemente tambin la f uncin judicial ha sido capturada por esas otras polticas y ha sido instru mento de esas otras fuerzas po lticas. Entonces todava hay un proceso de avance y retroceso en cuanto al fortalecimiento institucional y por tanto democrtico. Y no se sabe bien qu es primero, el huevo o la gallina. Si es que es fortalecer primero la democracia para luego mejorar el serv icio de justicia realmente, o si es que se mejora primero el servicio de justicia y se va al mi smo tiempo mejorando el sistema democrtico. Simplemente no se sabe bien. So I think that in Ecuador there is a lack of public policy, those State commitments to improve services. And then there is also the need for the improvement of political action in its entirety. To allow an institutional de velopment according to constitutional norms. Because it is the case that public practices in Ecuador are still not prac tices that respond to the constitution, but to forces and balances and imbalances of power, not so much the application of norms. Thus it is still the case in our very r ecent history that Congress, a public apparatus, or the Executive, a public ap paratus, takes decisions according to its possibilities for power and not according to the constitution. And evidently the judiciary has also been captured by those types of politics and has been a tool for those types of politics. Therefore, there is still a process of advancements and ba cklashes in terms of institutional strengthening and c onsequently, of democratization. And it is not known what comes first, the chicken or the egg. If we ha ve to strengthen democracy first to later be able to improve legal services, or if we im prove the justice system we can strengthen democracy at the same time. We just dont know (emphasis added). That is exactly the debate presented in this project: JR does not nece ssarily translate into democratic development; not without taking into account several other variables that range from historical roots, to development processes, to globalization. This should not be interpreted as a pessimistic view but rather as a pragmatic one. The theoretical and ethnographical literature, as well as my interviews with legal actors in Ecuador, suggest that in practice, institutional reform is not a magic potion, regardless of its benevolent intentions. It is a matte r of realizing that many variables come into play in the development pr ocess. Whether we like it or not, implementing a judicial reform needs to be paired with worki ng on the process of the democratization at the


76 same time, since as Prillaman concludes, ju dicial reform does not shape the nature of the consolidation of politics: politics shape the na ture of the judicial reform (2000: 8). Conclusions Ecuador is one of the m any Latin American countries currently undergoing a process of radical judicial reforms. Changing from an inquis itorial legal tradition that has prevailed for over 500 years, to an adversarial Western model has rais ed several important issues in the legal realm. Focusing on how legal actors re spond to the judicial reform, my conclusions reveal the many obstacles and issues in the current JRM approach. More than anything, the assumption that judici al reform can indeed bring democratization has been challenged. If anything, th e results show that this linear concept of development with which the JRM is operating, may end up being part of the problem afflicti ng the Latin American judiciaries. The criminal justice system in Ecuador, for example, operates without the sufficient implementation, training, technology or funds, cr eating vast and complex problems even in the technical administrative areas, wh en JR was supposed to allevi ate these same problems. The adversarial system has been in place for more th an a decade now, yet, th e legal culture of the inquisitorial tradition has been maintained. If the situation persists the way it is, JR will continue to encounter dead-ends to advance. It is also worth mentioning how, despite having interviewed a varied sample of legal actors (including different ages and areas in the legal realm), responses to many of the questions coincided. Essentially, there was a general feeling of disappointment in the legal system and the faith in the potential impact of JR. Their views, however, reflected a more profound disappointment in politics and governance in general and, more importantly, in how justice works in the country (i.e. social and economic justice). These perspec tives are particularly important because they are not coming from resear chers or scientists, from politicians, or from


77 average citizens in the streets. Rather, they come from the actors that compromise the legal system itself Evaluations of JR concentrating on tec hnical matters or reform implementation, although crucial to the efforts of JR, tend to mi ss the more fundamental social processes that create, react to, or affect change With this in mind, this thesis hopes to fill in some of the holes within the JR debate. These perspectives can guide reformers towards areas that have the potential to affect JR and provi ded the needed attention. Ignoring these perspectives, on the other hand, means facing the danger of only prom oting progress and change on paper. Although Ecuadors development trajectory is perhaps more problematic than other nations experiences, by no means, the challenges to its JR are the exception. Several other case studies and theories reach sim ilar conclusions. Although judicial reform can help achieve more efficiency in the system and more access to justic e, it does not mean that it is the solution to a nations problems. If implemented without co nsidering a countrys degree of democratic embeddedness, the reforms are doomed to fail to achieve its ambitions goals. The problem is that if the problems persist, JR faces the possibility of becoming part of the problem and not the solution.


78 Table 5-1. Confidence in state institutions in Ecuador 2004 Police Judiciary Government Political Parties Level of Confidence N % N % N % N % A lot 43 3.6 24 2 12 1 5 0.4 Some 272 22.70 139 11.7 122 10.2 71 5.9 A little 475 39.6 425 35.8 405 33.8 290 24.2 No Confidence 407 33.9 599 50.5 659 54.9 824 68.7 Total 1,198 100 1,187 100 1,200 100 1,190 100 Source: Latinobarmetro 2004. Numbers exclude missing values (Respondent answered 'Do not know' or did not answer).


79 1 13 54 320 10 20 30 40 50 60Very satisfiedFairly satisfiedNot very satisfiedNot at all satisfiedPercentage Figure 5-1. Satisfaction with Democracy in Ecuador 2004. Source: Latinobarmetro 2004. Numbers exclude missing values (Responde nt answered 'Do not know' or did not answer).


80 80 20 0 10 20 30 40 50 60 70 80 90Benefit p owerful interests Good of al l Percentage Figure 5-2. Country governed for powerful inte rests in Ecuador 2004. Source: Latinobarmetro 2004. Numbers exclude missing values (Respond ent answered 'Do not know' or did not answer).


81 CHAPTER 6 CONCLUSIONS Since its ind ependence, Latin America has been a land of development experiments. Advances and setbacks as well as triumphs and ha rdship, have characteri zed its rollercoasterlike path over for centuries. Meanwhile, theories of development, aiming to unwrap the mystery of the Latin American experien ce have emerged, with social sc ientists, researchers and policy makers looking for the missing piece of the puzzle. More recently, a new development paradigm ha s emerged, as many began to argue that the Latin American judiciaries were the weakest lin k in the democratic transition (Carothers, 1999: 316). The argument was that the inquisitorial legal order was an archaic, inefficient system, failing to live up to the demands and values of the democratic era. As a result, a strong regional movement for judicial reform emer ged. International banking institutions and donor organizations increasingly promoted this proj ect, fueling support for the change towards the adversarial, prosecutorial model of Western, industrialized nations. Throughout this thesis, I have introduced the rationale behind the contemporary judicial reform movement, paying particular attention to those areas where a ne w legal order is posited that it will make significant im provements in Latin America. Th ese include: citizen security, modernization of the state, economic de velopment, and democr atization. Although the potential benefits of the judici al reform movement are seemi ngly far-reaching and target the critical issues confronting Latin American natio ns, a pragmatic approach calls into question the actual delivery of these promises and argues for a more cautious approach. In fact, a pragmatic perspective questions whethe r judicial reform will indeed translate into development, unless certain crucia l variables are taken into consid eration. From this perspective, development is not an automatic, natural or guaran teed outcome of a judici al reform, but rather a


82 vital component for its success. In light of these consider ations, a traditional an alysis of judicial reform provides an incomplete assessment a nd insufficiently explores necessary criteria associated with development objectives. Although this perspective pertains to various assumed benefits of the reform, in this thesis I have focused on the supposition that the introduc tion of the adversarial system will strengthen the rule of law and as a conseque nce lead to democratic consolid ation. Nonetheless, as research and evaluations of many different country case studies show, JR is not merely a technical or administrative issue, but a political one, th at requires a long-term commitment and, by implication, amore profound process of democratiza tion in order to be implemented successfully. Notably, this perspective does not come from critics who believe the rule of law is irrelevant, or that judiciaries do not play a prominent role in a democratic regime. Rather, this voice emerges from researchers and scholars whose evaluati ons of the JRM show how the varying results pertaining to the wide range of issu es relating to judicial reform do not act in isolation. In light of this recognition a pragmatic approach to judici al reform recognizes that while the rule of law is necessary in a democratic regime, the refo rm of the judiciary alone does not sufficiently resolve the issues that confr ont the region. Thus, a more comprehensive assessment of factors illustrates the emergence of a pragmatic perspective regarding the benefits of judicial reform. In Chapter 4, cases from Argentina, El Sa lvador, Guatemala, Venezuela, among others, explored by several prominent scholars illustrate this point. Importantly, their research reveals how judicial reform is hampered precisely by t hose actors whose support it needs, calling for the need to reframe the approach towards JR. Likewise, in the case of Ecuador explored in Chapter 5, one-on-one interviews with key legal actors in Quito provided a closer glimpse of the wide array of issues affecting the sy stem of justice in the country. The respondents coincided in the


83 idea that changing the legal syst em is not itself sufficient to promote the rule of law or justice in the country. Notably, as it happe ns in other nations, resistance to legal reform comes from members of the judiciary itself, unveiling the powerful interests in keeping the status quo. In this sense, the current JR approach ha s not been successful in changi ng the power structure needed to strengthen the rule of law, esp ecially judicial independence. This is not to say that it has been impossi ble to pass any reforms. As I discussed in previous chapters, various countries have indeed begun a process of JR. There is a regional as well as international movement supporting them. Ho wever, these initiatives do not translate into an equally supporting national movement for reform and, unfortunately, this is precisely what the JRM needs to succeed. If anything, the lack of na tional support for JR is precisely what has hampered change (Hammergren, 1998; 2002). The ba sic goal of this project, however, was to bring together both perspectives, ju xtaposing JR in theory and JR in practice, in order to build on a more practical approach towards JR efforts. In fact, Ungar argues that more often than not, the reform of the justice system is driven by motivations that tend to have more to do with f ear of delegitimization of government, rather than by a strong drive for change (2002: 3). Certai n standards and criteria for international legitimization (i.e. demand for the protection of human rights), for business partnerships and investments (protection of forei gn capital), and, in some cases, from elected officials who realize the institution is not responding to citizen or investor needs and are afraid they will be blamed for it (Thome, 2000; Ungar, 2002). As Prillaman states, a more fundamental error in the conventiona l wisdom relates to the true nature of judicial reform. At bottom, judi cial reform is not merely a st erile, apolitical, administrative issue or a universally desired collective good that can be managed through narrow and staggered institutional tinkering. Rather, it is, for better or worse, an inherently political undertaking (2000: 7; ital ics in the original).


84 Citizen insecurity and the intensification of crime and violence, for example, were major forces that pressured the Latin American nations afflicted with this phenomenon to pay attention to the reform of the criminal justice system. However, this took place when the situation was already out of control (i.e., increasing episodes of mob justice both in urban and rural areas). Undoubtedly, other motivations and driving forces for JR exist, yet, these do not guarantee a true process of institutional change when a true commitment from aut horities remains weak. Importantly, demand for change is necessary but hardly sufficient condition for reform (Hammergren, 2002: 2). Thus, once again, a true co mmitment and consensus for change in the long-run remains absent because demo cratic embeddedness is still weak. Equally problematic, the interviews presente d also revealed that doubts about the benefits of JR are not just conclusions from certain researchers, or, of a pa rticular agenda. It is shared by people who act in the legal realm daily, and whos e own first-hand experiences have led them to this conclusion. Clearly, many of their concerns were related to budgetary and technological matters as well, but the fact that the nationa l government does not make a priority of JR by supporting it financially either, fu rther serves to portray the im portance of a long-tern, national consensus in order to implement the reforms succe ssfully. In turn, this is sue also unveils the need for further democratic embeddedness in order for this ideal situa tion to take place. Going along those lines, the question of improving efficiency shows mixed results. While some aspects of this component have been aided by the oral process, the current state of affairs does not call for victory yet. As the Ecuadorian case described in Chapter 5 reveals, the reforms have also introduced confusion into the system, without the necessary trai ning, infrastructure, or technology to confront them. Thus, there is the risk of making it a very inefficient adversarial system. The Minister I interviewed said that the judiciary might be modernized because it


85 employs many components of judiciaries of advan ced Western nations, but in terms of improved efficiency, that is a different story. What was the benefit of leaving behind an inefficient inquisitorial system for an adversarial syst em if it is not going to work properly? The problem that I foresee is that fixing these problems in Latin American judiciaries will not be the same as when reforms were carried out in the United States or Europe. In those nations, the reforms were a gradual process of change that evolved naturally and throughout centuries. In Latin America, however, JR implies a radical change from the previous system, and in most cases, without even the minimum necessary physical assets to implement it, nor without adequate training for those involved in it, and, on top of everything, with a very weak national drive to support it. Portes, in his latest work on institutions and development makes a similar point by stating, When imported institutional blueprints are supe rimposed on such realities, the results are not hard to imagine. These plans do not necessar ily backfire, but they can have a series of unexpected consequences following from the fact that those in charge of their implementation and the presumed beneficiaries view reality through very different cultural lenses (2006: 243). Along the same lines, Prillaman (2000) has argued that there are not yet even the necessary tools to measure inputs and outputs of JR to assess whether or not the reforms are really working; and Thome argues that when judicial reform projects are implemented with such a linear approach, they fail to take into consideration the reality of Latin America and how foreign judicial systems will not perform the same way in the receiving country (1998: 75). Latin America is not a uniform body of nati ons but rather vast differences mark each countrys development experience. All nations have different historie s of state formation, therefore they all have a differe nt situation concerning state pres ence (regardless of whether it was democratic or dictatorial) state embeddedness, and outreach of public institutions and state capacity. Therefore, different pow er relations and institutional processes took place in every


86 country, and to this we may add that these ar e not uniform within na tions, since some areas, notably the capital cities and important commer cial cities have received more attention and resources than isolated towns. Consequently, even the priority given to the judicial reform debate varies by each countrys democratic situation (Domingo, 2004: 106). The Chilean legal reform illustrates this point. As part of my research efforts for the development of this thesis, I pa rticipated in the Legal Study Tour of the Americas in Santiago, Chile during March 20071. I had the opportunity to meet with some of the leaders of the reform efforts in the country, as well as intellectuals behind the reform pr ocess in the rest of the region. In one of the lectures I attended, a famous Chilean historian explained the success of the countrys legal reform by stating that since it s very first days as a republic, Chile was la Patria del Estado, a country where citizens obeyed the state. According to him, the influence of Andrs Bellos Civil Codification was much infl uential in this aspect. Thus, it was not the quality of academia, of judges or any other sector but the fact that Chile had reach a minimum degree of stateness that other Latin American countri es are still lacking (see also Mirow, 2004: 137). Not surprisingly, Chile is the only country in the region that has been able to implement a radical reform of the criminal justice system. Acco rding to one of the JR experts I interviewed at the JSCA, the capacity to make a long-term politi cal commitment to the reform is one of the key lessons learned from the Chilean case. In fact, Chile initiated its efforts in the early 1990s with the support of a wide political spectrum which only allowed making constructive criticisms of the reform. This prevented any opponents from using this issue as means of advancing personal agendas and gave the country consensus to move forward with the reform. As the expert declared, En Chile, dejaron gobernar (In Chile, they let govern). 1 The Legal Study Tour of the Americas in Santiago, Ch ile was sponsored by the UF Levin College of Law, the UFs Center for Governmental Responsibility, and the Center for Latin American Studies at UF.


87 Therefore, the problem with this developmen t project lies in the assumption that an industrialized nations development experience can be replicated in Latin America, disregarding the influence of many different variables such as historical context, the different colonial experiences, different sociolog ical, demographic and even ge ographic backgrounds. If there are vast differences within and among the Latin Am erican nations, then there are even greater differences with the United States or Western Europe. As Alejandro Port es (2006) argues on his conceptual reanalysis of institutions and de velopment, many reformers have overlooked the long-standing sociological res earch and conceptualiz ation on norms and values, which Durkheim discussed a century ago. This neo-institutio nalism assumes that by simply transporting Western institutions to LDCs, the institutional pr oblems in those countries will be automatically solved. Yet, as the research presented in this pr oject suggests, JR is not a magical potion that will bring democratization. On the contrary, democratiza tion is needed in order to carry out a JR. The current JRM approach confuses its goals with the means it actually relies on. After all, as Portes argues, institutional change is not the same as a change in the class structure or in the value systemprocesses that ultimately affect institut ions but that occur elsewhere (Portes, 2006: 249). Portes (2006) criticisms of this neo -institutionalism paradigm highlights another good point. The idea that all that needs to be done is export Western institutio ns to Latin America, portraying a modern vs. tradi tional dichotomy, reflects the same premises of previous development models of the 1950s. They were ba sed on the belief of the unity of goodness: to assume that all good things go toge ther and that the achievement of one desirable social goal aids


88 in the achievement of all others (Huntington, 1968: 5).2 Yet, projects implemented with such unilinear approach have already proven to be ine ffective. When evaluating JR in Latin America, Domingo concluded that, Critiques of these endeavors point to the wastage and mismanagement of resources in the design and implementation process of these refo rms, and suggest that they often represent ill-conceived but universally appl ied prescriptions that bear li ttle relation to specific local needs and conditions (2004: 122). Therefore, although I am not rej ecting the need to st rengthen the rule of law and promote justice (in a very broad sense), I do argue that the framework w ith which reform projects are being carried out needs to be revised: JR will not, by itself, bring the rule of law. As Santiso argues, it has already been years of implemen ting one development model after another, yet these opposing paradigms bring nothing new into th e table. In fact, they just represent the emergence of a new cognitive style in which key words are replaced by new vocabulary. The domination of single paradigms in the past has already showed that development does not occur in a linear sequence of events where everything is predictable. In the context of JR, development is not a natural, guaranteed outcome of the re forms, but actually a key ingredient for its successful implementation. Since, as the experience with many other development paradigms suggest, there is not a single magical cure for the many problems affecting Latin America. Assuming that all that needs to be done is to br ing in the state institutions of justice and to increase access to the courts for the average ci tizen, overshadows the more fundamental need for real reforms of state structures (Snodgrass Godoy, 2004: 627). Thus, JR efforts need to work on a comprehensive reform that will, indeed, guarantee justice in every sense of the word. Otherwise legal reform will only become part of the many issues afflicting Latin America. 2 Nobel Prize winner Amartya Sen (1999) has already argued this point when analyzing the impact of economic development projects in LDCs. He argues for the need to differentiate between growth and development, urging policy-makers to envision growth as the means to acquiring development, instead of viewing it as an end in itself.


89 REFERENCES Baker, Mark B. 2005 No Country Left Behind: The Exporting of US Legal Nor ms Under the Guise of Economic Integration. Emory International Law Review, 19 (7). Caldeira, Teresa P.R. and James Holston 1999 Democracy and Violence in Brazil. Comparative Studies in Society and History 41 (4): 691729. Carothers, Thomas 1999 Aiding Democracy Abroad: The Learning Curve. Washington, D.C.: Carnegie Endowment for International Peace. Corbin, J. and A. Strauss 1990 Grounded theory research: Procedur es, canons, and evaluative criteria. Qualitative Sociology 13: 3-21. Davies, Diane, 2006 The Age of Insecurity: Violence and Soci al Disorder in the New Latin America. Latin America Research Review 41: 178197. Diamond, Larry 1999 Developing Democracy: Toward Consolidation Baltimore, MD: John Hopkins University Press. Domingo, Pilar 2004 Judicialization of Politics or Politicization of the Judici ary? Recent Trends in Latin America. Democratization 11 (1): 104126. Duce, Mauricio 2005 Introduction, in Ma uricio Duce (ed.), Criminal Procedure Reforms in Latin America: Experiences in Innovation. Santiago de Chile, Chile: Justice St udies Center of the Americas. 2007 Criminal Justice Reform in Latin Ameri ca: A Panoramic and Comparative Perspective Examining Its Development, Contents, Results and Challenges. Pape r presented at the Crime, Law and Governance Workshop, University of Florida at Gainesville, May 1. Duce, Mauricio and Rogelio Prez Perdomo 2003 Citizen Security and Reform of the Crimin al Justice System in Latin America, in Hugo Frhling and Joseph S. Tulchin (eds.), Crime and Violence in Latin America: Citizen Security, Democracy, and the State. Washington, D.C.: Woodro w Wilson Center Press. Eckstein, Susan Eva and Timo thy P. WickhamCrowley 2003 Struggles for Justice in Latin America, in Susan Eckstein (ed), Struggles for Social Rights in Latin America. London, UK: Routledge.


90 El Mercurio 2006 Marcha Contra la Delincuencia in Diario El Mercurio Quito, Ecuador. 6 June Last Accessed March 2008 http://www.elmercurio.com.ec/web/titula res.php? seccion=fzuyEtT&codigo=Hs6x2uO8yI&nu evo_mes=06&nuevo_ano=2006&dias =08¬icias=2006-06-08 Ferrandino, Alvaro 2003 Reforms to Facilitate Access to Justice, in Pedro Galindo and Ral Madrid (eds.), Justice and Democratic Governance Santiago de Chile, Chile: Justice Studies Center of the Americas. Frhling, Hugo 1998 Judicial Reform and Democratization in La tin America, in Felipe Aguero and Jeffrey Starks (eds.), Fault Lines of Democracy in Post-Transition Latin America Miami, Florida: North South Center Press. Gargarella, Roberto 2004 Towards a Typology of Latin American Constitutionalism, 1810-60. Latin American Research Review 39 (2): 141-153. Hammergren, Linn A. 1998 The Politics of Justice and Justice Reform in Latin America: The Peruvian Case in Comparative Perspective Boulder, Colorado: Westview. 2002 Fifteen Years of Judicial Reform in Latin America: Where We Are and Why We Havent Made More Progress. United Nati ons Development Progr amme Programme on Governance in the Arab Region (UNDP -POGAR). Last Accessed March 2008 http://www.pogar.org/publica tions/judiciary/linn2/latin.pdf Huntington, Sa muel P. 1991 The Third Wave, Democratization in the Late Twentieth Century Norman, Oklahoma: Norman University of Oklahoma Press. JSCA/CEJA (Justice Studies Center of the Americas) 2005 Ecuador, in Ximena Cataln Ancic (ed.), Report on Judicial Systems in the Americas 2004-2005. Santiago de Chile, Chile; Justice St udies Center of the Americas. Larkins, Christopher M. 1996 Judicial Independence and De mocratization: A Theoretical and Conceptual Analysis. The American Journal of Comparative Law 44 (4): 605626. McAdams, James A. 1997 Preface, in James A. McAdams (ed.), Transnational Justice and the Rule of Law in New Democracies Notre Dame, Indiana: University of Notre Dame Press.


91 Mndez, Juan E., Guillermo ODonnell, and Paulo Srgio Pinheiro 1999 The (Un)Rule of Law and the Underprivileged in Latin America. Notre Dame, Indiana: University of Notre Dame Press. Messinger, Sheldon L. 1955 Organizational Transformation: A Case Study of a Declining Social Movement. American Sociological Review 20 (1): 3-10. Mirow, M.C. 2004 Latin American Law. Austin, Texas: University of Texas Press. Navarro, Sonia 2003 Judicial Management: The Limitations and Possibilities of Judicial Reform, in Pedro Galindo and Ral Madrid (eds.), Justice and Democratic Governance Santiago de Chile, Chile: Justice Studies Center of the Americas. Psara, Luis 2000 Las Decisiones Judiciales en Guatemala: Un Anlisis de Sentencias Omitidas por los Tribunales. Guatemala City, Guatemala: Misin de Verificacin de las Naciones Unidas en Guatemala. Pereira, Anthony W. and Diane E. Davis 2000 New Patters of Militarized Viol ence and Coercion in the Americas. Latin American Perspectives 27 (2): 3-17. Prez Sainz, Juan Pablo 2005 Exclusion and Employability: The New labor Dynamics in Latin America, in Wood and Roberts (eds.), Rethinking Development University Park, Pe nnsylvania: Penn State University Press. Popkin, Margaret 2000 Peace Without Justice: Obstacles to Buil ding the Rule of Law in El Salvador. University Park, Pennsylvania: Pennsylvania State University Press. Portes, Alejandro 2006 Institutions and Development: A Conceptual Reanalysis. Population and Development Review 32 (2): 233262. Prillaman, William C. 2000 The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport, Connecticut: Praeger. 2003 Crime, Democracy, and Development in Latin America. Policy Papers on the Americas 14 (6): 1-30.


92 ProJusticia 2007 Plan Estratgico de la Funcin Judicial para el Mejoramiento de la Justicia Quito, Ecuador: Corte Suprema de JusticiaProJusticia. Ratliff, William and Edgardo Buscaglia 1997 Judicial Reform: The Neglected Priority in Latin America. Annals of the American Academy of Political and Social Science 550: 5971. Santiso, Javier 2006 Latin Americas Political Economy of th e Possible: Beyond Good Revolutionaries and Free-Marketeers. Cambridge, Massachussets: MIT Press. Sen, Amartya 1999 Development as Freedom. New York, NY: Random House, Inc. Sondrol, Paul C. 1990 Intellectuals, Political Culture and the Root s of the Authoritarian Presidency in Latin America. Governance: An International Jour nal of Policy and Administration 3 (4): 416437. Snodgrass Godoy, Angelina 2004 When justice is criminal: Lynchi ngs in contemporary Latin America. Theory and Society 33: 621651. Sunkel, Oswaldo 2005 The Unbearable Lightne ss of Neoliberalism, in Wood and Roberts (eds.), Rethinking Development in Latin America University Park, Pennsylvania: Penn State University Press. Thorp, Rosemary 1998 Progress, Poverty and Exclusion: An Econom ic History of Lain America in the 20th Century, Washington, D.C.: Inter-American Development Bank. Thome, Joseph R. 2000 Heading South But Looking North: Globalizat ion and Law Reform in Latin America. Wisconsin Law Review 3: 691-712. Ungar, Mark 2002 Elusive Reform: Democracy and the Rule of Law in Latin America. Boulder, Colorado: Lynne Rienner. Valenzuela, Arturo 2004 Larin American Presidencies Interrupted. Journal of Democracy 15 (4): 5-19. Vanden, Harry E. and Gary Prevost 2006 Politics of Latin America: The Power Game Oxford, New York: Oxford University Press.


93 Zalameda, Diego 2005 The Criminal Complaint Unit, in Criminal Procedure Refo rms in Latin America: Experiences in Innovation. Santiago de Chile, Chile: Justice Studies Center of the Americas.


94 BIOGRAPHICAL SKETCH Alexandra Anda was born in Quito, Ecuador where she lived until she moved to United States to attend school. She graduated with a Bachelor of Arts in international studies from Albion College in Albion, Michigan. She later intern ed at the Organization of American States in Washington, D.C. for year. She moved to Florid a to complete her Master of Arts in Latin American Studies, with a concentration in development studies at the University of Florida. Her research interests include social development, gender, culture, criminology, governance, inequality, economic development, and j udicial reform in Latin America.

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