THE JUDICIAL SECTOR IN LATIN AMERICA & THE CARIBBEAN:
ELEMENTS OF REFORM
Maria Dakolias
Judicial Sector Specialist
April 1996
Forthcoming: World Bank Technical Note
April/May 1996
TABLE OF CONTENTS
FOREWORD
ABSTRACT
PREFACE AND ACKNOWLEDGMENTS
EXECUTIVE SUMMARY
I. INTRODUCTION
II. THE GOALS OF JUDICIAL REFORM
III. JUDICIAL REFORMS IN LATIN AMERICA AND THE CARIBBEAN
JUDICIAL INDEPENDENCE
Judicial Appointment and Evaluation Systems
Disciplinary System
Recommendations
JUDICIAL ADMINISTRATION
Court Administratio
Judicial Budgets
Court Facilities
Case Administration
Recommendations
PROCEDURAL CODES
Recommendations
ACCESS TO JUSTICE
Alternative Dispute Resolution Mechanisms
Court Costs
Legal Aid
Small Claims Courts
Other Barriers to Access
Gender Issues
Recommendations
LEGAL EDUCATION AND TRAINING
Recommendations
BAR ASSOCIATIONS
Recommendations
IV. IMPLEMENTATION OF A JUDICIAL REFORM PROGRAM: POLICY
RECOMMENDATIONS
REFERENCES
FOREWORD
The countries in Latin America and the Caribbean are emerging from
a period of major change and adjustment. These recent changes have caused a
rethinking of the role of the state. There has been greater reliance on markets
and the private sector with the state acting as an important facilitator and
regulator of private sector activity and development. However, public
institutions in the region have been unable to effectively respond to these
challenges. In order to support and encourage sustainable and equitable
development, Latin American and Caribbean governments are engaged in
institution building which will provide greater efficiency, functional autonomy
and improved service. The judiciary is a necessary public institution which
should provide equitable, expeditious and transparent dispute resolution to the
citizens, economic agents and the state. However, in many countries in the
region there is a need for reform in order to improve the quality and efficiency
of the administration of justice. This in turn will foster an enabling
environment that is conducive to trade, financing and investment.
The judiciary in many parts of the Latin American and Caribbean
region has experienced lengthy case delays, extensive case backlogs, limited
access by the population, a lack of transparency and predictability in court
decisions and weak public confidence in the judicial system. This inefficiency
in the administration of justice is a product of many obstacles. These include a
lack of independence of the judiciary, the inadequate administrative capacity
of the courts, deficient case management, a shortage of judges and lack of
training, noncompetitive personnel practices, expenditure control systems that
lack transparency, inadequate legal education and training, weak enforcement
and sanctions for unethical behavior, lack of alternative dispute resolution
mechanisms, and cumbersome laws and procedures. This technical note
discusses some of the elements of judicial reform while providing examples of
reforms in the region. It is my hope that it will assist governments,
practitioners, researchers and World Bank staff in developing future judicial
reform programs.
Sri-Ram Aiyer
Director
Technical Department
Latin America and Caribbean Region
ABSTRACT
The Bank has been a relatively new participant in judicial reform
with a number of projects under implementation and preparation, and even
more being contemplated. The majority of the Bank's work has been in Latin
America; consequently the Bank's work in this area is being examined as other
countries throughout the world only now begin major reform efforts. The
Bank's experiences have made it clear that there is a need to define the
elements of an overall judicial reform program which can be adapted given the
country-specific needs. As a result, it is important for the Bank to develop a
coherent approach to judicial sector projects since governments from around
the world are increasingly asking the Bank for assistance in the reform
process. This paper proposes a program for judicial reform which specifically
addresses the main factors affecting the quality of court services, its
monopolistic nature and the resultant inefficiency. The reform program also
addresses the economic and legal causes at the root of an inefficient and
inequitable judiciary. While an exhaustive list of reform measures cannot be
provided, this paper discusses the main elements necessary to ensure an
equitable and efficient judiciary. The basic elements of judicial reform should
include measures with respect to guaranteeing judicial independence through
changes to judicial budgeting, judicial appointment, and disciplinary systems
improving court administration through adoption of case management and
court management reforms; adopting procedural reforms; providing alternative
dispute resolution mechanisms; enhancing the public's access to justice;
incorporating gender issues in the reform process; and redefining and/or
expanding legal education and training programs for students, lawyers and
judges.
PREFACE and ACKNOWLEDGMENTS
This report was prepared under the Public Sector Modernization Unit
of the Technical Department in the Latin America and the Caribbean region.
The Public Sector Modernization Unit has been providing support and advice
to judicial reform projects in the region, and this report is designed to compile
the different experiences of the region as a way to assist future judicial reform
efforts. The report especially benefited from the support of Mr. Malcolm D.
Rowat, Manager of the Public Sector Modernization Unit, whose valuable
direction and comments were instrumental in bringing this report to
completion, as well as the support of Mr. Sri-Ram Aiyer, Director of the
Technical Department. The author is thankful to Denise Manning-Cabrol for
her research assistance during the preparation of this paper, and to the Legal
Department and Bryant Garth for their valuable comments and suggestions
during the various drafts of this report.
EXECUTIVE SUMMARY
The purpose of this paper is to outline some of the elements of
judicial reform that should be considered during a country specific review as
well as during the design of a judicial reform program. While an exhaustive
list of reform measures cannot be provided, this paper discusses the main
elements necessary to ensure an equitable and efficient judiciary. These
elements taken as a whole are designed to improve the efficiency and
effectiveness of the judiciary--that is, its ability to resolve conflicts in a
predictable, fair and timely manner. An effective government requires
functioning legal and judicial institutions to accomplish the interrelated goals
of promoting private sector development, encouraging development of all
other societal institutions and alleviating poverty. The paper draws upon the
reforms of the Latin America and Caribbean Region where the Bank has had
its first experience as well as includes experiences from many OECD
countries. However, these experiences will have relevance for other regions
contemplating reform.
As the Latin American and Caribbean Region continues the process
of economic development, greater importance is being given to judicial reform.
A well-functioning judiciary is important for economic development. The
purpose of any judiciary of any society is to order social relationships and
resolve conflicts among these societal actors. Currently the judiciary is unable
to ensure predictable and efficient conflict resolution to enforce individual and
property rights. It is unable to meet the demands from the private sector and
the public at large, especially the poor. Given the current state of crisis of
Latin American and Caribbean judicial systems, the goal of the reform efforts
is the promotion of economic development. Judicial reform is part of the
process of redefining the state and its relationship with society, and economic
development cannot continue without effective enforcement, definition and
interpretation of property rights. More specifically, judicial reform is aimed at
increasing the efficiency and equity in resolving disputes by improving access
to justice which is not rationed and promoting private sector development.
The public as well as most judges and lawyers also consider the time
required for resolution of a typical case as excessive. It is not uncommon for
cases to take up 12 years to be resolved in court. As a result, the courts are
experiencing tremendous backlogs. In Brazil, more than 4 million cases were
filed in the courts of first instance in 1990, but only 58 percent of those cases
were adjudicated by the end of 1990. In Bolivia, in several first instance
courts, only 42 percent of the cases that enter the system are disposed of in the
same year. In Trinidad and Tobago, only about 30 per cent of the cases filed
are resolved in the same year. The increasing backlogs and time delays
throughout the region have shown an increase in demand for court services.
With the increase in economic activity, the courts have also
experienced an increase in case filings, but they have not been able to keep up
with the pace of filings thereby causing backlogs. In addition, the courts have
been poorly managed. The courts have historically been managed by the
judges themselves who have spent up to 70% of their time on court
administrative matters. Even worse, judges have little training prior to
assuming responsibilities on the bench or while on the job. Regardless of
wealth, there is a desire to avoid the judicial system's delays and
unpredictability. As a result, there is widespread recognition that judicial
reform is necessary. In fact, many countries in Latin America and the
Caribbean have embarked on reforming their judicial systems and have
increasingly requested assistance from the World Bank in this area. However,
the elements of judicial reform and some preliminary priorities need to be
formulated.
The most important elements include the independence of the
judiciary-- the appointment, evaluation, and disciplinary systems; judicial
administration-- court administration, case administration, and procedural
codes; access to justice-- alternative dispute resolution mechanisms, court
costs, legal aid, small claims courts, and gender issues; legal education --for
students and the public and training for lawyers and judges; and the bar
associations. Although these are the basic elements, the individuality and
uniqueness of each judicial system does not permit complete specificity in the
recommendations provided within this paper. Such specificity can only come
as a result of an in-depth review of each country's judicial sector. The
sequencing of the reforms also requires country-specific review, however,
some initial priority areas could include: administration of the courts,
independence of the judiciary, training for judges, court personnel and lawyers
and improving the access to justice. Some preliminary activities in these areas
are provided under each recommendation section.
Independence of the judiciary has structural, organizational and
administrative aspects which must be considered during reform. This is
essential in order to change the public's perception of corrupt behavior in the
judiciary. Several aspects that should be considered include substantive,
personal, collective and internal independence. Such independence allows the
judiciary to make decisions according to the law and not based on external or
internal political factors. Personal independence for judges can be achieved
through appropriate judicial terms, salaries and case and court assignments.
In addition, the method in which judges are appointed, evaluated and
promoted play an important role in independence as well as maintaining
qualified judges on the bench. An important part of the quality will depend on
the disciplinary and evaluation systems in place. Judicial independence
requires a transparent and merit-based appointment system. Such a system
could involve a judicial council which participates in the process.
All these elements constitute the overall independence of the judiciary
and must be considered during judicial reform. Specific administrative and
organizational reform measures for enhancing judicial independence
regardless of the type of independence should include: judicial budget
autonomy, the existence of a uniform appointment system, stable terms,
disciplinary system for court personnel, and adequate salaries and retirement
benefits for judges. Transparent methods of appointment, removal and
supervision should be included in judicial reform programs in order to ensure
personal and functional independence for judges. Independence may also be
strengthened by building the administrative capacity and training of judges
and court personnel. In this way, the judiciary becomes efficient and obtains
more respect, thus improving the quality of personnel attracted to a judicial
career.
The administrative aspects of independence include court and case
administration. Court administration involves the administrative functions of
the courts, including administrative offices, personnel, budget, information
systems, statistics, planning and court facilities. Historically, the court budget
has not been able to meet the needs of the judiciary. Judges and court
personnel work under conditions that are not conducive for efficient
administration of justice. The inadequate court facilities and lack of
technology compound this situation. Due to a lack of space for archives and
active case storage, cases are often found lined up along the hallways of the
courts. Case administration, on the other hand, refers to the processing of
cases, including, for example, case management. This can have a tremendous
impact on the efficiency of the courts. Most courts experience severe case
backlogs and are unable to reduce their caseloads to cope with delay. For
example, in 1993, there were approximately 500,000 cases pending in the
entire court system in Ecuador. The Argentine statistics office estimates that
over 1,000,000 cases were pending in the entire Federal system in 1992. By
1993 in Colombia, over 4 million cases were pending. One way to address
such backlogs is to review the procedural codes to determine whether they are
creating any backlogs in the system.
In order to address the administration element of reform, the program
should review the budgetary process and ensure that there be budget
autonomy. In addition, activities should also include assistance in
decentralizing the administration of budgets. Additionally, a permanent
administrative full-time position should be created as part of the judicial
structure. A review of the current number of personnel should be completed to
determine the actual needs given the court and case management techniques as
well as establish clear terms of appointment, classification of positions and a
system of promotions based on evaluations. Finally the court facilities should
be modernized to accommodate such reforms.
Access to justice depends on the proper functioning of the judicial
system as a whole, but some specific factors include the economic,
psychological, informational and physical barriers for individuals to access
judicial services. This includes, for example, court costs and facilities as well
as language differences which may be found among indigenous populations,
for example. Proper legal aid programs and alternative forms of justice can
also assist in improving access. Adequate and efficient legal aid and public
defenders programs should be made available to provide legal assistance and
advice for those who can not otherwise afford to bring an action or defend
themselves in a law suit. Access to justice can be enhanced through alternative
dispute resolution mechanisms (ADR). Alternative dispute resolution
mechanisms including arbitration, mediation, conciliation, and justices of the
peace can be used to alleviate delays and corruption. Another important
element of access are gender issues which should be considered under each
element of reform. Gender differences create obstacles for women, preventing
them from accessing the legal and judicial system to enforce their rights.
In order to improve access to justice judicial reform programs should
consider both court-annexed ADR as well as private ADR. This will permit
competition in resolving disputes thereby addressing the monopoly of the
judiciary. Pilot programs can be developed in a wide variety of areas
including court-annexed ADR, private ADR or jueces de paz. Such programs
should also concentrate on providing qualified legal representation for the
poor. In addition, information should be provided to facilitate public use of the
judiciary. This could include providing translators for those who do not speak
the official language and assistance for those who do not read or write.
Improved access will also depend on court costs as well as lawyers fees that are
charged. Judicial reform programs should review court costs to determine
whether they are high enough to deter frivolous claims and corruptive
behavior and whether they provide for waivers to improve access. Lawyers
fees awarded by the court should also be reviewed in this way. Gender issues
in judicial reform programs are an important part of alleviating poverty and
achieving economic growth. Women constitute a majority of the individuals
using legal aid services; and therefore, by necessity the programs should focus
on areas that affect women most. In addition, judges must be made aware that
specific gender issues are often involved in the cases before them.
Legal education and training is fundamental for judicial reform. This
includes legal education and training for students, continuing legal education
for practicing lawyers, judicial training for judges and legal awareness
education for the public. The quality of law schools has been deteriorating and
therefore there is a need to improve both the university level education as well
as promote continuing training for professionals. In most Latin American
countries the public universities have no entrance requirements, and each
school establishes its own graduation requirements. Due to low salaries, law
professors usually work on a part-time basis, and therefore, have little time to
devote to research. As a result, judges often are not prepared for the bench.
Legal education at the university level is important for the future of
the legal profession, but it is an ambitious area that has had limited success in
the past. An evaluation of the open access of law schools should be done in
order to prevent an excess supply of lawyers and therefore, a misallocation of
resources. Judicial reform programs should concentrate on the training of
judges, and most importantly, on training for current judges as the current
reforms will only be successful if the sitting judges are convinced of the need
for judicial reform. Finally, public education should be included in the reform
program. This could also include public campaigns as a way to provide better
education and access to the population at large.
The main role of the bar associations in all countries is to regulate the
profession through entrance requirements and the disciplinary system, to
provide legal training for its members, and provide basic legal services to the
community. The requirements for qualifying as a practicing attorney, ethical
standards and the disciplinary procedures must be clearly established and
enforced. Generally in Latin America, the requirements to practice law entail
merely holding a law degree from a university and being a member of the bar;
this is the case in Argentina, Peru and Ecuador. Bar associations are
responsible for enforcing the disciplinary system; however, the mechanisms in
place usually do not operate properly.
The bar associations should take a more active role in monitoring the
legal profession as well as the judiciary and establishing clear ethical
standards. These standards should be enforced by an effective disciplinary
system which can impose appropriate penalties. The bar association should
also assist in improving access to justice by providing some basic legal services
to their community. In addition, the bar association should provide training
for its members. Such training should include substantive legal courses as well
as courses in case management techniques.
These are some of the most important elements of reform and ideally
a reform program should attempt to cover as many of the elements lacking in a
specific country as possible. However, resource constraints as well as other
donor participation should be taken into account when establishing priorities.
Although some general recommendations are made within each chapter of the
paper, specific recommendations can only be made once a judicial sector
review is completed for that country. Furthermore, priorities for
implementation can only be provided on a specific country basis. Judicial
reform programs should be implemented in stages: the sequencing of such
stages should be planned taking into account the costs and benefits of each
stage. The initial stages, however, should avoid legislative reform because of
its extremely costly nature in terms of political capital. Each country's legal,
economic, social and political environment must be factored into the
recommendations as well as into developing priorities for implementation.
The Bank can assist in this process by financing judicial sector studies. With
this, constructive dialogue can take place with the governments as well as a
design of appropriate avenues of reform.
There have been several initiatives in the Latin America and
Caribbean Region which provide a basis for this approach to judicial reform.
The Bank first began with a small judicial technology component in a larger
Argentine Social Sector Reform Loan in 1989 and then a separate Judicial
Infrastructure Loan in Venezuela in 1994 which concentrated on
infrastructure, technology and some substantive studies in other areas to
compensate for the lack of a prior sector review. During implementation,
however, the project has been substantially revised. At the same time, the
Bank began to develop a second generation approach to judicial reform. In
1992, the Bank embarked on a judicial sector review in Argentina financed by
an Institutional Development Fund Grant. In 1995, a judicial reform project
was approved for Bolivia where several studies had been completed which
influenced the components that were included. The Bank has adopted a prior
review approach and now produces its own judicial sector reports. Such
reports have been completed in Ecuador and Peru where projects are under
preparation. These projects have aimed to include a broader range of
components than was included in the first project in Venezuela, as well as an
effort to include a broad participation by the legal community in the
preparation of the individual components.
Judicial reform should be conducted through a consensus approach
and should be initiated from within the country. Only if these two objectives
are met -- judicial reform from within and consensus -- will the reforms be
long-term systemic changes instead of superficial reforms subject to reversal.
Consensus requires that the political limitations and the priority pragmatic
strategies be taken into account. Any program of judicial reform must also
consider the vested interests in the judiciary, the bar associations, and the
other branches of government. These vested interests can impede consensus.
Projects should encourage the participation of a broadly composed informal
committee or judicial council (consejo) during the preparation and
implementation stage in order to promote consensus in the projects, provide an
obvious counterpart as well as ensure accountability. Though it is ideal to
have full consensus, it may not be realistic. Therefore, at some point it is
important to begin some form of reform activity while at the same time
continuing the consensus building.
The Latin America and Caribbean Region today is politically,
economically and socially better suited for judicial reforms than the 1960s and
1970s. There is greater economic stability in the region which has allowed
these countries to begin the so-called second generation reforms. The
economic reforms have also increased transactions with unknown actors and
thus has increased the demand for formal mechanisms to resolve conflicts.
Second, the reforms are a result of the local initiative and strong commitment:
there is wide support among governments including across political parties,
legal community, private sector as well as among NGO's for such reforms.
Finally, the programs include a wide variety of elements which are specifically
designed for country needs.
The objective of these projects today is to provide a service that is
efficient and equitable as well as respected and valued by the community. In a
market economy, an effective judicial system is expected and needed by
citizens, the government and the private sector in order to resolve conflicts and
order social relationships. As markets become more open and transactions
more complex, formal and impartial judicial institutions will be essential.
Without such institutions, private sector development as well as public sector
modernization will not be complete. Similarly, such institutions contribute to
the economic efficiency and lead to growth which in turn alleviates poverty.
Judicial reform should especially be considered in tandem when contemplating
any legal reform because without a functioning judiciary, laws cannot
effectively be enforced. As a result, comprehensive judicial reform can have a
tremendous impact on the success of the modernization of the state as well as
make an important contribution to the overall development process.
I. INTRODUCTION
During the 1980s, development efforts focused on a macro-economic
agenda that out of necessity took priority over institutional reforms. "[F]or
decades, governments in Latin America failed to develop the institutions
needed to handle their populations' basic problems because they concentrated
most of their resources on managing their countries' economic assets and
regulating almost every aspect of economic life."i However, as economic
stability became a part of reality, many countries began to work on achieving
social equity as well as political and economic reforms. As a result, the
development process has now evolved into second generation reforms with an
expanded scope that focuses on institutional reforms, such as judicial reform.
In the words of one Minister of Justice, "it is not enough to build highways and
factories to modernize a state . . . a reliable justice system is needed as well."ii
An effective government requires functioning legal and judicial institutions to
accomplish the interrelated goals of promoting private sector development,
encouraging development of all other societal institutions, alleviating poverty
and consolidating democracy. Legal principles supporting the prevailing
economic system in Latin America are nominally based on the freedom to
exercise individual and property rights.iii But legislation is meaningless
without an effective judicial system to enforce it.
The purpose of the judiciary of any society is to order social
relationships (among private and public entities and individuals)iv and resolve
conflicts among these societal actors. The Latin America judicial sector does
not effectively accomplish these purposes but is, in fact, currently perceived by
all of its users -- private individuals and the business community -- and its
actors -- judges and lawyers -- to be in a state of crisis.v As a result, the public
and the business community distrusts the judiciary and believes judicial
resolution to be excessively time-consuming. This perception of
ineffectiveness by the institution's potential users prevents its intended
beneficiaries from accessing its services, and when forced to use its services,
believe they will be unjustly treated. Consequently, the judiciary cannot fulfill
its purposes of ordering society and resolving societal conflicts and is therefore
in need of reform. This paper will discuss what judicial reform is, the reasons
why it is necessary for economic and social development in Latin America,
and specific recommendations with the benefit of the information provided by
the region's experiences.vi Although the Caribbean is included in this paper,
not all the problems and recommendations will be relevant for those countries
based on a common law system since these countries have a specific set of
concerns. After discussing the specific elements of Latin American and
Caribbean judicial reform efforts, the final section of this paper will provide a
more extensive discussion of project design. It is important to mention that
although this paper concentrates on the civil aspects of judicial reform, many
of the elements apply to both civil and criminal courts. However, the Bank is
prevented by its Articles of Agreement to work within the criminal law area
since intervention in this area is not considered to be for productive purposes,
i.e. they do not seek to promote economic development.vii
II. THE GOALS OF JUDICIAL REFORM
Economic reform requires a well-functioning judiciary which can
interpret and apply the laws and regulations in a predictable and efficient
manner. With the emergence of an open market, there is an increased need
for a judicial system. The transition from family run businesses --which did
not rely on laws and formal mechanisms to resolve conflicts-- to an increase in
transactions with unknown actors has created a need for formal conflict
resolution. These new business relationships need impartial decision-making
within more formal institutions. However, the current judicial system is
unable to satisfy this demand, thereby forcing the parties to continue relying
on informal mechanisms and long-standing family or personal ties to do
business.viii This sometimes discourages business transactions with unknown
but possibly more efficient actors which leads to an inefficient allocation of
resources. ix This situation adds cost and risk to business transactions and,
thus, reduces the size of the markets, and consequently, the competitiveness of
the market.x
In addition, the increase in economic integration between countries
and regions demands a judiciary that meets international standards. For
example, the WTO, MERCOSUR, and NAFTA require certain principles to
govern trade issues. Economic integration requires greater harmonization of
laws which in turn requires that they be consistently applied by the member
countries. The Member Countries must have assurance that the laws will be
applied and interpreted in accordance with these international or regional
standards. In this way, the countries around the world must modernize their
judiciaries in order to accommodate these demands and provide a level playing
field in the international arena.
The government must be able to enforce rules of the game it has
created; through the judiciary, it can provide this service by enforcing
individual and property rights.xi Consistent enforcement in turn provides for
a stable institutional environment where the long term consequences of
economic decisions can be assessed. In this context, an ideal judiciary applies
and interprets the laws equitably and efficiently which means that there must
be: (a) predictability in the outcomes of cases; (b) accessibility to the courts by
the population regardless of income level; (c) reasonable times to disposition;
and (d) adequate court-provided remedies.xii
Contrary to this ideal, the judicial sector in Latin America neither
effectively nor efficiently enforces existing legislation. Currently the system is
plagued with distrust and delays in disposing of cases which have impeded
private sector development and access to the courts. First, the public has a
widespread distrust of the judicial sector. For example, in Argentina only 13
percent of the public have confidence in the administration of justice.xiii In
Brazil, 74 percent of the public view the administration of justice as fair or
poor.xiv The worst case perhaps exists in Peru, where 92 percent of the
population lack confidence in the judges.xv Court officers, including
judgesxvi and support personnel as well as lawyers and government officials
are perceived to be at the root of the problem and thereby make it difficult to
even promote any change. The judiciary, in economic terms, has a monopoly
on the supply of justice, and consequently, has incentives to act
inefficiently.xvii The judiciary captures the rents in kind by providing less
than optimal service which in turn causes delay in the resolution of cases.
The public as well as most judges and lawyers also consider the time
required for resolution of a typical case as excessive-- this is the consequential
damages individuals and businesses suffer due to the prolonged time for
resolution and the courts incapacity to satisfy the population's demand for
court services.xviii It is not uncommon for cases to take up 12 years to be
resolved in court.xix As a result, the courts are experiencing tremendous
backlogs. In Brazil, more than 4 million cases were filed in the courts of first
instance in 1990, but only 58 percent of those cases were adjudicated by the
end of 1990.xx In Bolivia, in several first instance courts, only 42 percent of
the cases that enter the system are disposed of in the same year.xxi In Trinidad
and Tobago, only about 30 per cent of the cases filed are resolved in the same
year.xxii The increasing backlogs and time delays throughout the region has
shown an increase in demand for court services.xxiii The judiciaries in Chile
and Ecuador, typical cases, do not increase the supply of services in response
to increased demands for services.xxiv
Given the current state of crisis of Latin American judicial systems,
the benefits and goals of the reform efforts can be broadly grouped into two
overall structural goals: enhancement and reinforcement of democracy and
promotion of economic development. Judicial reform is necessary for a
functioning democracy and is part of the process of redefining the state and its
relationship with society, and economic development cannot continue without
effective enforcement, definition and interpretation of property rights. More
specifically, judicial reform is aimed at increasing the efficiency and equity in
resolving disputes by improving access to justice which is not rationedxxv and
promoting private sector development.
III. JUDICIAL REFORMS IN LATIN AMERICA AND THE CARIBBEAN
In order to achieve these goals, a program for judicial reform should
be designed to specifically address the main factors affecting the quality of
court servicesxxvi, its monopolistic nature and the resultant inefficiency. This
reform effort must also address the political, economic and legal causes at the
root of an inefficient and inequitable judiciary.xxvii If such a holistic
approach is not adopted, there will be a minimal probability for success.
While an exhaustive list of reform measures cannot be provided, this paper
discusses the main elements necessary to assure an equitable and efficient
judiciary.xxviii The basic elements of judicial reform should include measures
with respect to guaranteeing judicial independence through changes to judicial
budgeting, judicial appointment, and disciplinary systems; improving court
administration through the adoption of case management and court
management reforms; adopting procedural reforms; providing alternative
dispute resolution mechanisms; enhancing the public's access to justice;
incorporating gender issues in the reform process; and redefining and/or
expanding legal education and training programs for students, lawyers and
judges. Although these are the basic elements, the individuality and
uniqueness of each judicial system does not permit complete specificity in the
recommendations provided below. Such specificity can only come as a result
of an in-depth review of each country's judicial sector.
JUDICIAL INDEPENDENCE
Administering justice at all levels depends on the quality of judges;
therefore, judicial independence is an imperative feature of any judicial reform
project. Contrary to common opinion, judicial independence signifies much
more than a judge's freedom from political influence. Independence has a
number of definitions and dimensions,xxix including structural,
organizational and administrative aspects of a judicial system, which all play a
role in judicial independence.xxx However, given that a number of the
structural aspects of independence are constitutional in nature, the focus in
this section will be on the administrative and organizational aspects of
independence.xxxi
There are several different types of independence: substantive
independence, which is functional or decisional independence in German and
American law respectively (making judicial decisions and exercising official
duties subject to no other authority but the law), personal independence
(adequately secured judicial terms of office and tenure), collective
independence (judicial participation in the central administration of courts)
and internal independence (independence from judicial superiors and
colleagues).xxxii
The first type of judicial independence is functional or decisional
independence or the ability to make decisions according to the law and not
according to external political factors.xxxiii A number of external factors can
affect a judge's decision including pressure from the political branches of the
government, other members of the judiciary, and public or personal
relationships with respect to the parties or the subject matter of the particular
case. The branches of government, and in particular the executive, has
historically influenced judicial decision-making. The judiciaries in Latin
American countries have historically not acted as significant institutional
counterforces to legislative and executive abuses of power for a number of
historical, political and structural reasons.xxxiv
Interference in the decision-making process can also occur within the
court system itself. This is part of what has been termed internal
independence. In most Latin American countries, geographic and subject
matter jurisdictions are not well-defined. This allows for undue political
interference by the supreme court, as well as by the legislature, in the lower
courts' judicial activities. For example, one observes that, with few exceptions,
indiscriminate federal judicial review of state court decisions is common in the
region. In this context, state cases lacking federal constitutional issues at stake
are ultimately appealable to the federal courts, who are empowered to reverse
state court decisions on purely state law grounds.xxxv Moreover, when
specific jurisdictional limits do exist, courts must respect such jurisdictional
requirements.xxxvi
It is also important that the individual judges have personal
independence. Personal independence refers to the fact that judges have
secure judicial terms and salaries, and the judiciary controls case assignments,
court scheduling and judicial transfers to a different court.xxxvii Forced-
reassignments can be particularly inimical to judge's personal
independence.xxxviii Personal independence for judges can be achieved
through appropriate methods of appointment, removal and supervision.xxxix
In addition to reinforcing personal judicial independence, these measures also
assist in assuring judicial accountability. Judges are public service providers
and should not only be independent and impartial but also accountable to the
population they serve.xl
Although many Latin American and Caribbean judiciaries lack
independence, it has been argued that this lack of independence may be
necessary for economic development. Currently, there is a tension between
democracy and economic reform and between economic reform and social
policy exists.xli For example, during recent reforms in Latin America some
countries have benefited from a strong executive that can act in an efficient
manner. The dilemma is then how to, at the same time, provide for the
institutional checks that guarantee accountability and oversight.xlii This
experience occurs most often when the executive has the power to issue
decrees while underdeveloped or delegitimized judicial systems are not able to
prevent executive abuse of power through effective judicial control or
legislative oversight.xliii In several cases of stalemate between the legislative
and executive, the executive has been able to bypass confrontations through
decrees in order to achieve economic policy with little to nonexistent scrutiny
from the judiciary. The Argentine and Peruvian experiences demonstrate such
behavior. However, judicial review could be a key component of economic
reforms. Moreover, without this oversight and consultation, economic reforms
may be unstable and subject to reversal.xliv
Judicial Appointment and Evaluation Systems
In order for any judicial system to provide justice, its service
providers, the judiciary, must be highly qualified, competent and respected
individuals in society. Therefore, adequate institutional mechanisms must
exist for selecting and maintaining such individuals in the judicial structure.
Such institutional mechanisms include appointment processes, terms of
appointment, salary levels and evaluation systems. All of these elements must
be properly fitted in order to provide the appropriate incentives for judicial
actors to provide quality service. In other words, the appointment process
must be tailored to find the highest quality of individuals, terms of
appointment must not offer improper incentives to act in personal interests,
salaries must be sufficient to attract and maintain high quality professionals
and, finally, an evaluation system must be in place in order to allow the
profession and the public to monitor judicial activity. Finally, a factor that is
often forgotten is that of transparency. For a market to function, in this case
the market for judicial services, there must be sufficient information available
to potential users of its services.
Judicial independence requires a transparent and merit-based judicial
appointment system. A variety of different appointment systems exist.xlv
Some countries have chosen to establish special committees that review
credentials and nominate qualified lawyers. Such committees may take the
form of a judicial councilxlvi with representatives from all levels of the
judicial branch, members of the legislature, representatives of the executive,
bar association members and sometimes even private lawyers or the public.
This may bring a perception of objectivity to the process if specific standards
are followed. Such a council is used for nominating Supreme Court justices in
El Salvador. In Chile, the president makes a selection from a list of names
provided by the supreme court.xlvii Other countries use committees, managed
by the executive, to recommend individuals.xlviii Although appointments are
often made by the executive, in some systems, the courts review and suggest
candidates for the positions.xlix Judicial schools can also be the main source
of judicial appointments, as is the case in Uruguay. It has been argued,
however, that there should be a mix of career judges as well as those from
outside the judicial system.l Finally, it should also be noted that the
appointment process is different for lower court judges who are often
appointed by the supreme court.li In any appointment system, however, the
most important aspect of such a system is that it be respected.lii
A system based on the highest professional standards and personal
integrity will promote quality personnel and quality justice. Judicial
appointments that are based on standards to ensure political loyalty only
perpetuate the dependence of the judiciary. It is essential, therefore, that only
those individuals truly qualified be considered for judicial positions.
Standards set forth in the appointment process may be applied through a
number of different standards systems, many times depending on the
respective appointment system: exams, a judicial career, and/or special
training. Most countries, including Argentina, Chile and Ecuador, do not
require a judge first to pass an exam or a course in order to be appointed to the
bench.liii In Brazil, however, entrance to the judiciary is by public exam,liv in
Peru and Venezuela new judges are appointed by a concurso publico. lv
In addition to the judicial appointment system, the judicial term also
plays an important role in ensuring the independence of the judiciary. Judicial
terms should be set to allow for as much independence as possible.lvi
Although it may not be advantageous to have life terms for all judges, life
terms can provide judges, in some instances, an environment that permits
them to be free from outside pressures and political influences. The Province
of Tucuman in Argentina recently instituted life terms for all judges to
improve independence of the judiciary. Fixed terms may cause some judges to
act inappropriately or unethically in order to ensure work opportunities after
their judicial service. For example, Supreme Court justices in Ecuador are
appointed for six years with the possibility of re-appointment. Such a system
creates an environment where judges may not recuse themselves from their
former private cases because they may have a vested interest in maintaining
control over the case, if they find themselves in the private sector again. The
same problem exists if judges are not provided with secure and stable
pensions. However, even when Latin American judges have life-time tenure,
history has shown that life terms do not always guarantee judicial positions as
the Executive has violated such terms.lvii Although there may be life terms in
certain countries, a trial period may be an option for a country to consider.
Germany is an example of a country that uses probationary periods.lviii
However, the incentives for good behavior may be in effect only during the
probationary period.lix The judicial term and the appointment systems must
be considered jointly in order to provide the necessary balance of incentives for
encouraging appropriate judicial behavior.
In order to avoid problems associated with an aging population of
judges, many countries have implemented mandatory retirement ages.lx
However, arguments have been made that given some of the low retirement
ages, the judicial system may actually lose many judges who still may be able
to continue their responsibilities.lxi Another option is to allow judges, at a
certain age, to take voluntary retirement or enter a mandatory senior status
that would entail a lighter case load.lxii This allows the judges themselves to
evaluate whether they are capable of continuing their responsibilities.lxiii
Similarly, an independent judiciary requires competitive salary
determinations.lxiv On average, salaries remain low as compared to other
private sector and sometimes to other public sector jobs.lxv For example, in
Ecuador, judges' salaries were increased 100 percent in 1992. However, such
compensation is still considered low in comparison with lawyers' salaries in
non-profit agencies.lxvi Judicial salaries must be comparable to the salary
levels of legislators and other professionals.lxvii Some countries base judicial
salaries on those of other civil servants, as in Uruguay and Paraguay, while
other countries ambiguously require an "adequate salary" or "one appropriate
for their position".lxviii In Bolivia judicial salaries are comparable to public
sector salaries and in some cases are even higher. (see figures 1 and 2)
FIGURE 1.
lxix
FIGURE 2
Once judges are appointed, a system of periodic evaluation is
necessary for maintaining the high standards set by a council or other
standard-setting mechanism. For example, Chile and El Salvador have
established a yearly evaluation system managed by the Supreme Court.lxx
These programs are considered to have improved the public's image of the
judiciary.lxxi Germany and France also use performance evaluations to make
promotion decisions.lxxii Other countries, like the United States, do not link
performance evaluations with promotions or salary increases.lxxiii
Consideration should be given to assuring that promotion systems do not
encroach judicial independence.lxxiv If the evaluation process is linked to
promotion and salary increases, the evaluation should not be based solely on
the number of cases adjudicated by a judge as this may encourage rapid but
unjust decision-making. Bolivia is currently experimenting with using
compliance with time benchmarks as one criterion in performance
evaluation.lxxv Since judges should be free from even the "slightest
interference by third parties when applying the law", who implements
performance standards becomes an important question. Thus, it may be unwise
to have the Ministry of Justice evaluate judges; instead, the judiciary should be
evaluated by peers.
One final element should be incorporated into any appointment or
evaluation process that a country may chose to implement: transparency.
Currently, the Latin American public perceives the appointment process as a
secretive process without any participation or knowledge from the
outside.lxxvi The public should be privy, in some way, to the nomination
process and the evaluation processes.lxxvii Providing mechanisms for
transparency and participation will allow the public to gain confidence in the
appointment process, the quality of judges themselves and in turn the judicial
system.
Disciplinary System
An effective disciplinary system is essential for maintaining high
standards of justice. Presently, many disciplinary systems, where they exist,
are not effective and, in some cases, are simply ignored. This creates an
environment where the public and lawyers cannot or will not bring ethical
charges against a judge.
A number of different structures exist for disciplinary systems. For
example, the judicial council may have jurisdiction over judicial discipline, in
addition to the appointment and the evaluation processes, thus creating a
uniform system and a central office.lxxviii Moreover, the review should be
conducted by people who do not have prior relationships with the judges in
question.lxxix Judicial councils can receive allegations of misconduct and
provide initial investigations.lxxx It is not necessary that the judicial council
conduct investigations, but there should be some type of commission that
investigates the allegations of misconduct.lxxxi In other cases, it may be the
Ministry of Justice that has responsibility for the disciplinary system.lxxxii In
a number of countries, the disciplinary system is administered and monitored
totally within the judicial structure.lxxxiii In any system, judges as well as
lawyers and the public should have the right to bring a complaint against a
judge. It is also important that the judiciary be involved in the disciplinary
process -- always assuring, however, that decisions are made objectively.lxxxiv
Regardless of the disciplinary structure selected, a number of consistent
problems exist in disciplinary systems, including the absence of clear
standards of ethical behavior, inappropriate enforcement mechanisms and the
lack of transparency in the disciplinary process.
The lack of clear ethical standards that define the expected behavior
of the judges or provide clear guidelines by which to assess their conduct
generate incentives for corruption. The absence of clear standards also
inhibits the development of an enforcement mechanism capable of addressing
charges of corruption within the courts. The disciplinary punishment should
also be realistic and appropriate for the violation because although suspension
and removal may be available, they are seldom, if ever, applied.lxxxv Again,
it is important that such punishments do not infringe on judicial
independence.lxxxvi The preliminary removal proceedings should be
conducted by the court or a board that includes a majority of judges selected by
the judiciary. Some argue that removal should only be done by the
judiciary.lxxxvii In this sense, the judiciary is self-regulating because the
investigation, reporting and decision to remove all occur within the judicial
branch without interference from the political branches of the
government.lxxxviii
Recommendations
All these elements constitute the overall independence of the judiciary
and must be considered during judicial reform. Judicial reform should seek to
address each type of independence. Specific administrative and organizational
reform measures for enhancing judicial independence regardless of the type of
independence should include: judicial budget autonomy, the existence of a
uniform appointment system, stable terms, disciplinary system for court
personnel, and adequate salaries and retirement benefits for judges.
Transparent methods of appointment, removal and supervision should be
included in judicial reform programs in order to ensure personal and
functional independence for judges. Independence may also be strengthened
by building the administrative capacity and training of judges and court
personnel. In this way, the judiciary becomes efficient and obtains more
respect, thus improving the quality of personnel attracted to a judicial career.
It may be difficult within the confines of a judicial reform project to
address the independence issues directly because they usually require
constitutional or legislative changes. Additionally, in many cases, it is not the
laws themselves that create a lack of independence but the actions of the
judiciary. Ultimately, it is up to the judiciary to act independently.lxxxix
This lack of independence and the high level of politicization is usually found
at even the upper echelons of the judiciary, thus, presenting an argument for
starting reform efforts with the courts of first instance and working from the
ground up. Nevertheless, independence at the highest levels should be
addressed simultaneously. Judicial reform programs based on enhancing the
independence of the courts may be politically unfeasible among some members
of the legislatures, executive and even the judiciary given the various vested
interests, however they are essential if real reform is to occur.
Ideally, appointment process should be reviewed for all levels of the
judiciary since one of the main goals of the reform is to assure that
professionals administer justice. In many cases this would mean changes in
the appointment process would require constitutional or major legislative
reforms. It is important that judicial reform programs include both the upper
and lower echelons of the court system simultaneously. This is because even
though any country's supreme court selection process will inevitably be one
where political processes dominate, in many cases it is the responsibility of the
higher courts to appoint the lower court judges. In order to diminish the
system of patronage, the reforms will necessarily begin with the higher courts
as has been recently accomplished in Mexico.
As part of their appointment and evaluations systems, a number of
Latin American countries have established judicial councils. Generally, such
judicial councils' responsibilities include: court administration, human
resources and judicial and personnel misconduct. They may have jurisdiction
over lower courts as well as the supreme court. In the Province of Tucuman in
Argentina, the creation of the Consejo for the appointment process has ensured
that more qualified lawyers are being appointed to the bench at all levels. It is
important that the members of a council be independent and not be run by the
party in power. Argentina, Ecuador and Peru have recently created judicial
councils.xc These councils should include membership from the judiciary, the
bar, the citizens, and the executive when established, similar to the one
proposed in Chilexci, and should be chaired by a judge, as is done in
Bolivia.xcii Finally, in forming a Consejo, it is important to consider whether
its members will occupy part-time or full-time positions.xciii
Judicial appointment, terms and evaluation all play an important part
in developing an appropriate incentive scheme for all of the judicial systems'
actors, including judges, lawyers and court personnel. This could include
requiring exams on technical laws for judicial appointment which may provide
the appropriate incentives for judges to delegate more of the administrative
responsibilities and publishing case statistics for each court which can provide
incentives for judges to operate more efficiently.xciv Salaries should also be
carefully evaluated under the projects in order to provide appropriate
incentives for judges as well as court personnel.xcv Reform programs should
focus on providing the appropriate set of incentives for changing these actors'
behavior to provide efficient and quality justice -- especially important in such
an incentives scheme is the disciplinary system.
If internal judicial disciplinary mechanisms do not operate properly,
political interference will force the extra-institutional (and sometimes extra-
constitutional) removal of judges, as occurred in Mexico in 1994. Such
political interference because of the absence of functioning disciplinary
mechanisms undermines the judicial institutions, the public's confidence in the
same and the independence of the judges. Judicial reform programs should
address whether the current disciplinary mechanisms are appropriate and if
so whether they are being implemented. Consideration should be given to
establishing review committees which can receive and review complaints and
interact with the public as well as the legal community. Although the final
disciplinary decision may be made outside the judiciary, consideration should
be given to having the initial disciplinary review conducted by an
interdisciplinary committee which includes judges. In addition, it is essential
to review the ethical guidelines and provide training for judges with respect to
such standards.
Finally, in order to educate judges concerning what behavior is not
acceptable and inform the public of the disciplinary process, a compilation of
the year's complaints should be available to the judges as well as the public.
Publishing opinions is important as it provides clear indications and
definitions of unacceptable and punishable behavior.xcvi Such publication
also assures the public that complaints are dealt with in a serious manner, thus
providing a needed measure of accountability. Some have argued that
additional measures for providing transparency and accountability should
include opportunities for the public and the bar associations to send comments
concerning judicial behavior.xcvii
JUDICIAL ADMINISTRATION
Judges in many Latin American countries are faced with severe
backlogs, low salaries, poorly trained staff, and a lack of technology -- all of
which create barriers preventing judges from performing their jobs in an
efficient manner. As a result, the administration of justice needs to be
reviewed as one of the most important areas for reform. Administration of
justice encompasses two areas: the administration of the courts and the
administration of cases, both of which must be addressed in order to improve
the administration of justice. Court administration involves the administrative
functions of the courts, including administrative offices, personnel, budget,
information systems, statistics, planning, and maintenance of the courts. Case
administration, on the other hand, refers to the processing of cases, including,
for example, case management.
Court Administration
In many Latin American countries, the judges themselves are often in
charge of court administration. This added responsibility prevents judges from
spending much needed time on judicial decision-making. In fact, judges in
Ecuador spend up to 70 percent or more of their time on administrative
matters, leaving little time for judicial responsibilities.xcviii The same
administrative duties occupy 65 and 69 percent of available judicial time in
Brazil and Peru respectively.xcix Moreover, it is quite common for judges to
delegate many of their judicial responsibilities to their clerks and keep the
administrative responsibilities for themselves. Three aspects of court
administration merit particular attention: first, the centralization of
administrative responsibilities and the consequent need to delegate
administrative responsibilities; second, the administration of court personnel;
and third, the judicial budget.
The overall court administration is often centralized. In some cases,
the higher courts prefer to handle the general administration of the system, but
this can create inefficiency if lower courts are forced to make even the most
simple requests to a centralized office.c It is advisable to work towards an
administrative system that is connected to the different levels of judicial
activity in order to be able to provide a court system that services geographic
and subject-specific needs.
As caseloads continue to rise, judges may be forced to delegate more
responsibilities as more pressure mounts on the court to perform its judicial
functions. Some courts have experimented with establishing separate
administrative positions and staffing them with persons specifically trained in
management, and thus, allowing such personnel to make the day-to-day
administrative decisions. This should leave judges free to make policies for
the court and oversee the overall administration of the court while leaving the
day-to-day administrative matters to the professional managers. Establishing
these new administrative positions has proven successful. Consequently,
judges are beginning to realize that this can be a tremendous assistance in the
administration of justice. However, such positions should be made official so
that they transcend changes in power. For example, in Ecuador, only after a
long process of adjustment and initial resistance, a professional managerial
approach was accepted, but it was repealed by subsequent changes of a new
Supreme Court president. As a result, the current supreme court president
signs checks for gasoline and decides whether a court employee in the
province may take an extended leave for sickness. Peru represents a unique
case in Latin America, where the administrative position is official and has not
been affected by a change in presidents. Bolivia and Chile are also using
administrators on a pilot basis in some courts.ci
The second aspect of judicial reform with respect to court
administration is personnel administration. A review must be conducted of the
current staff and its distribution in the court system as a number of countries
have an over-staffed judicial structure. Very often courts have proposed
solutions based on adding more personnel and judges as a way to deal with the
increasing caseload. In Brazil, 81 percent of the judges indicated that the
insufficient number of court personnel is the cause of the inefficient judiciary.
However, increased court personnel alone does not necessarily make for a
more efficient environment. In many countries in Latin America, as is true in
Ecuador, the number of staff assigned to each court is fixed and set by
regulation or statute.cii Thus, the number of staff members is the same in
every First Instance court regardless of the specific caseload. Furthermore, in
cases where there is a surplus of staff members, there is no evidence that these
courts are more efficient than those operating with fewer personnel. In
addition to the official personnel, many countries, including Argentina,
Ecuador, Peru and Chile, have unofficial court clerks who are not paid by the
judiciary but work for small payments to process cases.ciii
It is important to note, however, that many judges in Latin America
have tremendous caseloads. Perhaps at some point it may be justified to
increase the number of judges due to this fact. Decisions on whether to
increase the number of positions and judicial assignments should be based on
caseload trends. civ This of course, requires courts to keep records and provide
indicators to accurately predict the future. Very often, courts have proposed
solutions based on adding more personnel and judges as a way to deal with the
increasing caseload.cv In Brazil, 81 percent of the judges indicated that the
insufficient number of court personnel is the cause of the inefficient
judiciary.cvi However, increased court personnel alone does not necessarily
make for a more efficient environment.cvii For example, in Paraguay oral
procedures were implemented for noncriminal cases, and the number of judges
was increased by one-third. The new judges were recruited from those
graduates who completed a course at the judicial training institute. These
reforms resulted in less time for disposal per case.cviii
Judicial Budgets
A budget that is independent of political forces is necessary to ensure
an independent judiciary.cix In order to accomplish this goal, however, the
judiciary must have sufficient budgetary experience and financial abilities to
forecast judicial budgetary needs. It should also be noted that although
judicial budgeting is an important aspect of judicial independence, it is in itself
an important reform measure that goes well beyond the independence issue, as
any aspect of judicial reform will depend on effective judicial budgeting.
The judiciary must have budgetary autonomy since the executive and
the legislature may act as barriers to the allocation of sufficient resources.
This may be as severe as to impede the court from providing their services
efficiently and fairly. Many countries in Latin America provide budgets to the
judiciaries which allow for only minimal standards of justice for the public.
Such budgets perpetuate judicial dependence, generate corruption among court
personnel, and prevent the judiciary from attracting well-qualified judges and
support staff. Given the inherent problems related to the lack of
independence, the judiciary should control and manage the budget it receives
from the legislature.cx Moreover, as administration and budgetary
responsibilities are intimately interrelated, true administrative efficiency
cannot occur unless the judiciary controls and implements an efficient
budgetary program.cxi
In order to have an efficient allocation of budget resources, the
judiciary must have technical, financial accounting and auditing abilities. In
most Latin American countries the judicial personnel are not sufficiently
trained in accounting and financial affairs. In some cases, the judges
themselves manage the budget. In most countries, no actual centralized
administrative court procedures exist.cxii Additionally, the lack of specialized
personnel prevents the judiciary from realistically planning its budgetary
needs. The executive cannot provide the requisite judicial budget if the
judiciary itself cannot prepare a well-reasoned detailed budget proposal for
approval by the legislative branch. In several Latin American countries--
including Brazil, Colombia and El Salvador-- the judiciary is obligated to
prepare the judicial budget.cxiii While it will always be the ultimate
responsibility of the legislature to vote on the final budget, it is essential that
the judiciary be able to define its financial needs based on forecasting expected
filings, dispositions, and pending cases.cxiv Judicial control of the budget
does not, however, necessarily signify a centralized budgetary allocation. In
most Latin America countries, the Supreme Court manages the overall judicial
budget; therefore, the centralized administration results in an asymmetric
allocation of judicial resources. In many countries, the rural courts do not
receive resources based on the population or caseloads.cxv This inequity only
enhances the inaccessibility of the judiciary to low-income rural communities.
Although many countries in Latin America have proposed allotting a
pre-specified amount of the national budget to the judiciary as a method of
increasing judicial resources, this is neither a necessary nor a sufficient
solution. First, country-specific procedural requirements and the differences
in the population's cultural propensity to demand court services makes it
unwise to state that a higher fixed proportion of the government's budget
would necessarily improve the functioning of the judicial system.cxvi Second,
a legislated percentage of judicial spending is not always respected.cxvii
However, it is always important to note that an increase in the budget is not
sufficient to reform the judiciary. The size of the budget alone does not affect
judicial efficiency (measured by backlogs and delays),cxviii though some of
the reform measures that do affect the efficiency may require an increase in
resources.
FIGURE 3.
Court Facilities
Historically, court facilities have not been a priority in the allocation
of the national budget and therefore, the judicial budgets have been prevented
from acquiring modern court facilities. In some cases, judicial budgets have
not included any funds for capital improvements. As a result, court facilities
have not been able to meet the increased demands on the judicial system and
therefore do not adequately reflect the needs of judges, court personnel and the
users. The increased need for modern technology, security and for courts that
can accommodate oral proceedings have placed great strain on the traditional
design of court facilities.cxix Court facilities have received increased attention
since they affect the overall perception and image of the administration of
justice.
Currently in many countries judges and court personnel work under
conditions that are not conducive for efficient administration of justice. Due to
a lack of space for archives and active case storage, cases are often found lined
up along the hallways of the courts. This can be a health and safety risk
especially where some have had to be closed due to dangerous conditions
caused by the weight of the paper. In addition, there are often long lines just
to enter the courthouse and some lines have been known to take up to two
hours. Many courts also do not offer security for the judges. The condition of
the courthouse has an effect both on the public as well as the court personnel
and it also affects the image of the judiciary. Courthouses must reflect the
needs of the court personnel and the users of the system.
The planning for courthouses should take into account the number of
people using the courts, the personnel, use of automation and the need for
security. Such issues should be considered under the overall judicial reform
program. In many countries there are no design standards for courthouses;
instead each building can have different configurations.cxx Some may have
no windows or electricity where others have private showers for each judge.
Investment in courthouses should be considered after there is a clear
understanding of the reforms that will be implemented. This is especially true
in countries considering instituting oral procedures which will require separate
rooms for trials. Adequate facilities are needed to implement the overall
reforms and must be considered during any reform effort.
Case Administration
The administration of cases is the basis of administering justice.
Most courts experience severe case backlogs and are unable to reduce their
caseloads to cope with delay. For example, in 1993, there were approximately
12,000 pending cases in the Supreme Court of Ecuadorcxxi and approximately
500,000 in the entire system.cxxii The Argentine statistics office estimates
that over 1,000,000 cases were pending in the entire Federal system in
1992.cxxiii By 1993 in Colombia, over 4 million cases were pending.cxxiv
Improving administrative procedures requires revision of existing
procedures with respect to inefficiency in record management, caseflow and
case management, caseload management, and maintaining case statistics and
archives. These measures have a significant impact on reducing delay.cxxv
In addition to revising the procedures for administering cases, it would also be
beneficial to include case tracking technology that could assist the courts in
maintaining records.cxxvi In the Santa Cruz district courts of Bolivia, a case
tracking system is being tested on a pilot basis. This project should be studied
for potential use in other parts of Bolivia and, possibly, for adoption in other
countries. Maintaining accurate case statistics is essential to monitoring
progress as well as forecasting future resource needs. Data on current
caseloads will provide a benchmark from which to evaluate new programs and
procedures,cxxvii in addition to providing the necessary information for
budgetary projections. Case statistics will also encourage court research that is
currently being done only in isolated instances in Latin America.
Appropriate case management techniques require courts to be able to
compile data on caseloads.cxxviii The projects must prepare the court
administrative staff to do the planning and research necessary to carry out case
management techniques.cxxix It is also important that caseflow evaluations
be done by the courts as well because this can address questions of delay and
establish time standards for case processing and monitoring of individual case
progress.cxxx An evaluation of the workload is important for strategic
planning and research, resource utilization and operation activities of judicial
and non-judicial personnel.cxxxi Case related data can be used for a variety of
management issues including resource allocation, forecasting, caseflow
management, performance measurement, public information and national
trend analysis.cxxxii In addition, it can also assist in identifying courts that
are operating effectively and inform other courts about successful programs
and procedures.cxxxiii Providing the public with information on cases will
generate support for the courts and also quash false pretensions about the
court's activities and functions as well as educate court personnel on their
important role in case adjudication.cxxxiv The public availability of such
information is also important for providing public accountability of the court's
work as well as for controlling resources that are provided to the
judiciary.cxxxv
To confront excessive delays, it is crucial that a delay reduction study
be conducted in order to identify bottlenecks in the process.cxxxvi Thus, a
delay reduction program should be developed.cxxxvii This is an important
way to measure performance of the system because the study allows
measurable standards to be established as has been done in Argentina and
Ecuador through the Bank's delay studies. The courts can determine whether
the actual case times occur within the limits of the established
standards.cxxxviii Reform programs may also include changes in the
administrative procedures as well as the procedural codes to aid the efficient
processing of cases.
Some have argued that the delay problems may stem from the fact
that judges do not take an active role in moving cases through the
system.cxxxix Over ninety percent of the judges surveyed in Chile indicated
that the judges are passive with respect to case processing.cxl Other such
studies may find that delays occur when cases pile up on a secretary's desk in a
court of First Instance. Frustrated by the system, parties and lawyers are often
willing to pay a special price for an improved quality in court service: to move
cases along fastercxli or fix the outcome of a case, thus contributing to the
corruption in the system and effectively limiting or denying access to justice.
One survey in Peru identified clerks to be the principle source of
corruption.cxlii As a result, addressing the excessive delays in current judicial
systems will help ameliorate the problems with respect to increases in
demands for court services while working towards eliminating corruption and
improve user's confidence in the system.
Recommendations
A review of the current number of personnel should be completed to
determine the actual needs given the court and case management techniques as
well as establish clear terms of appointment, classification of positions and a
system of promotions based on evaluations. This review should also include
any unofficial court personnel. Moreover, if the unofficial clerks were barred
from the courts, it should be noted how much the courts would be impacted
and the potential number of pending cases that would increase. Until
caseloads decrease to manageable levels, it will be inefficient to prohibit such
assistance in the courts, even if it promotes payment for services.
Additionally, a permanent administrative full-time position should be created
as part of the permanent judicial structure. Certain aspects of decentralization
should also be incorporated into the administrative reforms. By relieving
judges of administrative duties case processing times will significantly
decrease.cxliii As mentioned above, requiring technical law exams for judicial
appointment and reappointment may encourage judges to delegate these
administrative responsibilities due to the higher qualifications required.
Exams for court personnel should also be considered.
Judicial reform programs should review the budgetary process and
ensure that there be budget autonomy. Assuming this, judicial budget offices
should be established and staffed with qualified personnel. Programs should
concentrate on providing training for court personnel to manage and prepare
judicial budgets. It is essential that the judiciary not only justify any increase
in judicial spending but also manage the current budgets efficiently. For
example, in Peru the judicial budget increased from 0.6 percent to 2.5 percent
(see Figure III), but every year the Judiciary has returned money to the
Executive because it does not have the capacity to use it. In addition, activities
should also include assistance in decentralizing the administration of budgets
as is being done successfully in Ecuador, where each Superior Court handles
the provincial budget. However, monitoring mechanisms should be in place
prior to any decentralization.
In order to discuss the size of the budget, a review of the budget
should be conducted relative to the total government spending and income in
the country. The main objective of a budget review is to determine how the
given resources can be spent more efficiently. This could be done in part by
comparing the number of cases filed versus the number of cases resolved in a
given court across time. On the basis of the analysis, the allocation of the
budget can be evaluated as well as the possible need for additional investment
to enhance efficiency.
Performance standards should be developed for the judiciary. There
has been some initiative taken in Chile to develop performance standards
(indicadores de gesti¢n) for the budget and personnel, but such standards
should be created for the entire system. It may be worthwhile to create some
regional standards first and then develop country specific standards.cxliv It is
important, however, to mention that these performance standards and
evaluation guidelines should be developed with the participation of the judges
and other judicial actors. Programs should include case management, and
thus, both caseflow and records managementcxlv together with a delay
reduction program and general statistics and information gathering
systems.cxlvi Such activities could be complemented with information
technology,cxlvii as technology can be used to reduce delays.cxlviii First
implemented on a pilot basis in order to learn from them, these measures can
then be improved prior to expanding them nationwide. For example, each
pilot could focus on different delay reduction techniques including case
management methods,cxlix case reassignments, and fast track programs.
Since such pilot programs depend, for the most part, on the people
implementing them,cl training is essential to implement this component of
judicial reform by educating court personnel (judges, secretaries and clerks) in
the new methods and systems for managing caseloads. In addition to the
technical training programs, it is also important to improve the service
mentality within the judicial branch, especially at the trial court level. Judges
can work within the existing legal framework to facilitate caseflow, promote
conciliation and settlement of cases and improve judicial relationships with
lawyers, litigants and court staff.
PROCEDURAL CODES
The Procedural Codes provide the framework for processing cases
and are an important element when considering judicial reform. In some
cases, merely implementing current procedures may be sufficient, while in
others procedural reform may be necessary.cli for example., although there
are time limitations they are regularly ignored. One reason this occurs is that
it may be beneficial to drag the case out until the amount demanded is worth
less due to inflation.clii However, like Argentina and Brazil, some countries
now require judges to adjust awards for inflation. Although the procedural
reforms generally involve the particular procedural codes of each individual
country, some common issues may be addressed: oral and immediate
procedures, time-saving reforms and ex parte communication issues.
Several Latin American countries, including Argentina, Bolivia,
Costa Rica, El Salvador and Guatemala, have chosen to revise their criminal
procedural codes to incorporate oral procedures. Peru and Venezuela have
instituted oral civil proceedings, although they have only been implemented in
Peru. Oral procedures have allowed for public trials, which, in turn, has
helped make judges publicly accountable for their decisions. However,
sufficient training has not been offered to judges and lawyers before the oral
procedures were implemented.cliii This has created a situation where the
judges and lawyers lack the necessary skills for using the new procedures to
their fullest extent. There has been no study to date which compares the time
delays in the courts before and after the implementation of oral procedures.
Moreover, adequate court reporting must accompany the oral proceedings as
was done in 1991 in Trinidad and Tobago in order to assist in the efficient use
of oral procedures. In addition to improving the efficiency of the courts, court
reporting also provides real accountability.
Procedural reform requires an initial identification of procedural
bottlenecks hampering the efficiency of the courts and causing delay. In
Brazil, 82 percent of the judges indicated that excessive procedural formalities
is the cause of inefficient administration of justice.cliv The large number of
appeals are partly attributed to delays in certain courts. For example, in
Brazil, 73 percent of the judges interviewed cite the high volume of appeals as
the leading cause of delay.clv Imposing stricter requirements for filing appeals
may be an option. Although time limitations are essential, judges do not
enforce them with any regularity. In a sampling of cases from Venezuela, for
example, 100 percent of the sample failed to meet the required deadlines.clvi
In Argentina, the codes include set time limitations; however, they are rarely
enforced.clvii The civil procedural code often establishes penalties for judges
who do not conform to the legally mandated deadlines to process cases. In
Argentina and Bolivia, the judge may lose jurisdiction over the case; however,
the available sanctions are rarely applied. According to a Bank financed study
in Bolivia, the procedural process for First Instance cases should not last more
than 42 days, when they in fact last 519 days -- ten times longer.
Additionally, discovery takes six months when the maximum time period is
fifty days.clviii This study concludes that judges themselves are the primary
contributors to delay problems.clix
Revised or properly enforced procedural codes can also reduce delays
and backlogs by providing mechanisms for the early resolution of cases,
including, among others, procedures for facilitating use of alternative dispute
mechanisms. In addition, the procedural codes could also be revised so that
judges have more control to move their cases. In some countries, the
procedural codes permit the judges to engage in settlement discussions with
the parties, but very often the judge does not implement this method of
settlement. The formal discovery process could be improved to foster early
exchange of information between the parties to encourage settlement. For
example, in Uruguay, 60 percent of court actions settle during conciliation
hearings, and of those, 85 percent settle as a result of the defendant's
realization that the plaintiff had a valid claim.clx However, judges, who
currently do not see this as their role, must actively use these mechanisms to
seek early resolutions. Another option for reducing delays that has been used
in Peru and Venezuela is the appointment of temporary judges. In Venezuela,
the consejo will appoint a temporary judge to handle twenty cases.clxi If such
a system is adopted it is important, however, to assure that the quality of
justice is not lowered. This may be done, in part, by providing that the
temporary judges come from the corps of retired judges.
Finally, the last aspect of procedural reform that has received scant
attention in Latin America is ex parte communication.clxii When ex parte
communication is permitted, parties may approach judges and judges can
request to see parties or their lawyers separately. Such ex parte
communication is widely practiced among the legal systems in Latin America,
as the codes generally do not regulate it. Ex parte communication contributes
to the general perception of corruption that permeates the judicial system and
permits such corruption to occur with greater frequency. Procedural reform
must address the eradication of ex parte communication.
Recommendations
Judicial reform programs should place emphasis on enforcing and
implementing existing rules and procedures. Procedural revision should occur
as necessary to complement other reforms. If, however, there is procedural
reform, it first should be done on a pilot basis working within the existing
procedural and institutional framework and should include training. For
example, courts could automatically dismiss cases that have been inactive for
two years assuming that there is prior notification to the lawyers and parties
involved as is done in Trinidad and Tobago as well as courts in the United
States. In addition, the issue of ex parte communication should be addressed
as part of the ethical standards endorsed by the court. In addition, a delay
study should be conducted to identify which procedural steps cause the longest
delays so that revisions can be experimented with during the reform process.
For example, since the termino de pruebas period has been found to be the
longest stage of the process, reforms should address this issue first.clxiii
ACCESS TO JUSTICE
One of the most important issues in judicial reform is the public's
access to justice. The court's justice must be accessible to those who need to
use their services for legitimate purposes.clxiv Access depends on the proper
functioning of the system as a whole. Improved access to justice is essential for
providing basic services to society and meeting the previously mentioned goals
of democratization and institutionalization and redefining the relationship
between society and the state. As noted earlier, the public's perception of the
judicial system is the defining factor determining whether anyone voluntarily
seeks the system's services. In particular, low income citizens tend to have an
especially low level of confidence in the judicial system compared to other
sectors of the population. Moreover, it has been demonstrated that this
perception can effectively be changed. In Chile, for example, it has been
established that poor people who have had no experience with the judiciary
have a 20 percent confidence rate in the judiciary, but those individuals who
have experience with the judiciary have a somewhat improved level of
confidence. clxv The courts provide a necessary public service that should be
designed so that everyone, regardless of their economic means, can access it
taking into account the limited amount of resources available.
Access can be evaluated by a number of factors: the time it takes to
adjudicate a case, the parties' direct and indirect costs of litigation (filing
expenses, court and bailiffs' fees, attorneys' compensation, lost wages, etc.), the
ability of the potential users to have knowledge of, understand and follow the
procedural steps during the life of a case, and the physical access to the
courts.clxvi In other words, a judicial system may present economic,
psychological, informational and physical barriers for individuals who need its
services.clxvii A number of solutions exist to overcome or lessen certain
economic barriers to justice, including reducing incidental costs to litigation,
providing efficient legal aid programs and creating less expensive, alternative
forms of justice.
Alternative Dispute Resolution Mechanisms
Access to justice can be enhanced through alternative dispute
resolution mechanisms (ADR). The delays, inefficiency and corruption in the
judicial system have the effect of encouraging litigants to completely avoid the
formal judicial system, opting for extra-judicial conflict resolution. ADR can
provide parties alternative methods to resolve their disputes amicably without
the delays of the formal system. ADR, at the same time, increases access to a
greater percentage of the population.
One of the most important benefits of expanding the extra-judicial
mechanisms for resolving disputes is to increase the access to justice for a
greater percentage of the population.clxviii Another added benefit is to provide
additional alternatives to the formal justice system. In El Salvador, mediation
provides parties a means to settle disputes without a lawyer and within two
months. This has been especially important for the poor. Initially, judges and
lawyers may feel threatened by the loss of power caused by the additional
avenues provided to the litigants. However, judges should be co-opted by
ADR's ability to alleviate judges' caseloads by removing complex and highly
visible cases from their dockets. Lawyers may also fear that they will need to
acquire new skills and play under new rules. However, they too may find that
in the long run ADR is useful for their clients as well as themselves.clxix
Some projects have even found that parties may abide by mediation
agreements more often than judicial decisions. In Chile, for example, a 70
percent success rate exists for mediation proceedings.
ADR can provide a number of advantages. Well-trained mediators
and arbitrators can provide specialized knowledge. They may provide more
predictable outcomes than the formal court system where judges may not be as
familiar with the subject matter. ADR also provides additional advantages
such as: ADR is particularly beneficial when the parties want to maintain a
future relationship and going to court may further strain their relationship; the
parties want to play an active role in resolving the dispute; the parties may be
more willing to talk directly with the other side in an ADR environment;
finally, if the parties have privacy concerns the ADR system may be better
than the court system. Notwithstanding the advantages of the ADR system,
the disadvantages of formal litigation may be the deciding factor in the
decision to use ADR.clxx A party's decision on whether to go to ADR or the
court system may depend on the speed of the system, ability to choose the
arbiter or mediator or on the party's perception of the possibility of losing the
case in the formal system.clxxi
Although there are many forms of ADR, the most common forms
include arbitration, mediation, conciliation and, in some instances, justices of
the peace.clxxii In many countries, the chamber of commerce provides
arbitration services for contract and commercial disputes. Delays to the
private sector can mean excessive costs and serious problems for business
transactions. Such a service can provide companies with alternative
mechanisms to resolve disputes by arbiters who may be more familiar with the
nature of the business than judges. This can be a tremendous advantage when
the stakes are high. The acceptance and use of arbitration by the Latin
American business community has increased significantly in recent
years.clxxiii However, the procedure has been, by and large, restricted to the
business community.
. Mediation is also a settlement process that "facilitates negotiations
among parties to help them reach settlement."clxxiv In Latin America, the
legal framework for mediation, found in the Latin American codes of civil
procedure, exists but impartial neutral third party mediators are not usually
available. Success rates are approximately 20% when this method is
used.clxxv Very often, it is the same judge assigned to the case that acts as
mediator.clxxvi Such a procedure does not permit parties to be candid about
the case or discuss their settlement positions. In fact, judges often complain
that there are ethical considerations when the same judge is mediator and
decision-maker. Moreover, in many Latin American and Caribbean countries,
the potential for ADR mechanisms as a way of reducing backlog and delays is
lost by the passive mentality adopted by court officers who do not see
themselves as driving forces in the settlement of disputes. Finally, experience
has shown that mediation, in particular, can also effectively settle disputes for
many who cannot afford to litigate.clxxvii
. Justices of the Peace, currently being used in some of the Latin
American countries,clxxviii can also provide alternatives to the formal justice
system.clxxix These justices are sometimes elected by the community, and in
other cases are appointed by the judicial system.clxxx These individuals may
have little or no formal training prior to assuming their responsibilities. The
position may be volunteer or fully compensated.clxxxi Additionally, the
system may require that the justice of peace be law-trained or provide for lay
justices.clxxxii However, if a lay justice of peace system is implemented, it is
especially important to provide training, as is the case in Venezuela.clxxxiii
Consideration should also be given to providing these judges training as
mediators as, in many instances, that is their primary role in society. In Peru,
the justices of the peace propose solutions until the parties agree.clxxxiv In
other countries, the justice may have more substantial powers to impose
sentences and conduct themselves like ordinary judges.clxxxv Some countries
have created well-functioning systems of justices of the peace where cases
decided by a justice of the peace are seldom appealed.clxxxvi The Peruvian
justices of the peace are essential for providing access to justice. However, it is
clear that there is no consistency in how cases are resolved.clxxxvii As
currently being implemented in Latin America, the justice of the peace system
falls outside the formal justice system. The justice of the peace system is a
response to the inefficiency of the judiciary and can provide needed
competition to the resolution of conflicts. However, an effective justice of the
peace system must complement the formal justice system and not add
additional levels of justice to impede instead of improve access.clxxxviii
ADR is becoming increasingly popular in Latin America because it
offers alternatives to the delays and corruption that characterize the formal
judicial system. Additionally, it provides healthy competition for the formal
judicial sector. In El Salvador mediation is being conducted by the
Procuraduria for child support and alimony cases. This program settles 90
percent of these cases in less than two months. In 1993, Argentina
established a mediation center. The Argentine Ministry of Justice is leading
this program successfully because several judges have been actively promoting
the program. Analysis to date reveals that the judges send the most difficult
cases or those that have already been in the judicial system for five to eight
years to the mediation center. Nevertheless, the center has had approximately
a 65 percent success rate in solving these cases through mediation.clxxxix
Family and patrimonial cases have an over 70 percent success rate in
mediation.
Although some countries have established successful ADR programs,
there are several issues that still must be addressed. For example, a decision
must be made as to whether arbitrators and mediators will be a regulated
profession, whether there will be mandated training, and the ethical standards
by which arbitrators should be judged.cxc The barriers to ADR and how they
will be overcome must also be considered. Some lawyers, for example, do not
support ADR mechanisms because they fear losing their clients and fees,
believe that it will be used to delay the process or because they are not familiar
with the new procedures. Additionally, certain judicial barriers exist. In a
number of Latin American countries, including Peru and Ecuador, judges do
not respect extra-judicial mediation agreements (and are not required to do so
by law) because they argue that resolving conflicts is their responsibility
thereby trying to keep hold of their ability to rent-seek. If ADR settlements are
not enforced and respected by courts, they cannot be effectively used for
improving access, reducing delays and cutting costs.
There are several ADR systems that can be established under a
private or court-annexed system. Court-annexed ADR is an ADR program
offered or authorized by the courts.cxci Under the court-annexed system,
ADR can be voluntary where the parties themselves agree to participate or
mandatory where the parties are compelled by the court. Private ADR is what
is normally offered in Latin America by the chambers of commerce or by non-
profit groups. Private ADR also includes international arbitration which is
often used when there is a dispute involving a foreign investor. The Centre for
Settlement of Investment Disputes connected to the World Bank,cxcii the
United Nations Commission on International Trade Law (UNCITRAL) Model
Arbitration Act, and some bilateral investment treaties like NAFTA are some
mechanisms which may be used. However, private arbitration agreements are
enforced under the judicial system. When one party does not abide by the
agreement, the other party may execute and enforce the award in court
In addition to the type of program offered, it is important to identify
what types of cases are appropriate for ADR.cxciii There is no universal rule
as to what type of cases should be included or excluded. Historically, courts
have used mediation and conciliation for domestic-related cases, especially
divorce situations. However, cases of spousal abuse have usually been
excluded from mediation programs because of the power imbalances usually
found between the husband and the wife. In Argentina, these types of cases
have not been excluded from mediation, but the program is too new to tell
whether it has been successful.cxciv However, sensitivity training by
mediators and the possibility of joint extra-court and court remedies may be
sufficient to alleviate these concerns,cxcv especially when there may not be an
alternative forum available. In the case of Ecuador, immediate family
members may not bring legal actions against each other in a court of law. As
a result, the ADR system is the only mechanism available for those suffering
from domestic violence. Many countries use arbitration and/or mediation for
labor cases. By and large, these mechanisms have been quite successful.cxcvi
Finally, an evaluation must be made as to what particular types of cases are
causing backlogs in the court system, whether these particular types of cases
demand more court resources than other cases in the system and whether these
cases would be more appropriately placed in an ADR system.
Court Costs
Incidental costs form barriers for all sectors of the population, but
especially limit the access of the poorer sectors of the population. Incidental
costs to litigation include attorney and notary fees,cxcvii delays of the judicial
system, and court fees. First, simply requiring representation of an attorney
impedes access.cxcviii However, in many instances it may not be avoided.
Additionally, regulated fees and high attorney's fees may prevent a number of
individuals from seeking legal assistance or advice. Lawyer's fees in some
countries increase depending on the number of motions that are filed, whether
the lawyer goes to court alone, or depending on the complexity of the case. In
some instances, a legal aid attorney or a public defender may exist, but this
may increase the costs of the proceeding because of the delays in acquiring
such assistance may entail. For example, in Trinidad and Tobago it takes the
legal aid office approximately three months to process applications for legal
assistance.cxcix Delays in the judicial system can deny access in a number of
respects. For example, although the demand for judicial services has
increased, the courts have been unable to supply the needed services.cc Thus,
in some countries, cases may take up to ten years to resolve thus diminishing
the value of the case or, in some instances, barring recovery and justice
completely. Delays also increase attorney costs, which may prohibit the party
from pursuing a valid claim after the court of first instance. Given the many
appeals available in Latin American courts, such delay causes hardship on
both parties.
The third type of incidental cost is court fees. It is important that
court costs be reasonable, fair, and affordable so as not to deter use of the
system.cci People who file legitimate claims have a right to proper access and
court costs should not prevent people from enforcing their rights. However,
this is not to say that fees should be eliminated. On the contrary, court fees are
necessary in many types of cases and can produce revenues for the
judiciary.ccii Reform programs may consider court fees with waivers for low
income groups. Peru and Ecuador have recently established court fees with
exemptions for certain cases. In addition to the official court fees, the view of
individuals and businesses alike is that informal incentives are required in
order to motivate court personnel, and at times judges, to process cases that
would otherwise remain pending for years. This transaction fee does not
necessarily inure to the benefit of the judicial system by offsetting the
legitimate costs of sustaining a judicial system, but rather simply goes to the
personal benefit of a judge or court official and contributes to corruption in the
system and effectively denies access to justice.cciii
Legal Aid
Adequate and efficient legal aid and public defenders programs
should be made available to provide legal assistance and advice for those who
can not otherwise afford to bring an action or defend themselves in a law
suit.cciv Although some form of legal aid may be available in some Latin
American countries, it is usually limited. Moreover, for these systems to be
efficient, it is essential that the public defender system be sufficiently staffed.
Currently, the number of public defenders is usually minimal given the
demand for assistance. For example, in Ecuador there are a total of twenty-
one public defenders in the country even after an unprecedented overall budget
increase.ccv There are only four public defenders in both Quito and Guayaquil
where there are over two million and three million people, respectively.ccvi
The entire city of Buenos Aires has only 14 public defenders. These public
defenders presumably provide free legal services to indigents in criminal, civil,
commercial, labor, traffic and landlord/tenant cases. Consequently, long
waiting lists exist for those requesting the assistance of a public defender,
creating hardship on those who cannot afford an attorney and cannot obtain a
public defender. This insufficient number of public defenders causes even
further delays in the judicial process.ccvii Finally, it is important to point out
that many Latin American and Caribbean countries provide parties with a
constitutional right to assistance in certain cases. Therefore, the lack of such
services explicitly infringes these individual's rights.
The Ministry of Justice, NGOs, bar associations, or universities all
may operate legal aid offices, in addition to public defenders offices. In Peru,
there is only one lawyer per consultorio juridico and only seven such offices in
Lima. Seven additional offices service the rest of the country. The seven
attorneys in Lima handled 19,719 cases in 1992.ccviii (see Figure 4) These
lawyers generally receive low salaries,ccix which has caused them, in some
instances, to charge unauthorized fees to their clients as is the case in Peru. In
addition, these offices sometimes cannot handle the number of requests that
they receive for assistance either due to the income requirements or the
insufficient number of lawyers available.ccx
FIGURE 4
In addition to legal aid provided directly by government-provided
services, legal aid can be provided through alternative sources, as part of a
training program.ccxi A number of countries require attorneys to provide
legal aid, after law school, in order to become attorneys, while others require
practical training while in law school.ccxii In some countries, including Chile
and Peru, lawyers must complete a specified amount of practical training after
law school. In Peru, young lawyers can choose to complete this training in
legal aid offices, thus providing important resources for these offices. Chile
requires candidates to complete this training in the legal aid offices. Some
countries may wish to consider adopting these practices by requiring new
lawyers to work in legal aid offices, similar to the programs in Belgium,
France and Holland,ccxiii as well as in Chile and Peru.
Small Claims Courts
Small claims courts that handle cases up to a specified dollar amount
is one option for reducing case backlogs in higher courts while improving
access to justice. These courts may help alleviate delays, especially in urban
areas where the delays appear to be more serious.ccxiv Small claims courts in
Trinidad and Tobago handle civil matters up to a specified dollar amount.ccxv
In Uruguay, for example, the small claims filings use simple oral procedures,
lawyers are not required and no appeals exist.ccxvi The public's acceptance of
these courts has been extremely favorable, according to several opinion
polls.ccxvii In order to create a level playing field for the parties and permit
access to the courts where parties may otherwise be barred due to a lack of
economic resources, it is important to consider implementing a system where
parties may appear pro se (without lawyers).ccxviii However, parties should
not be prevented from being represented by a lawyer.ccxix The proceedings
should be oral so that the parties can easily explain their case to the judge.ccxx
This type of court system could allow so-called "neighbor disputes" to be
resolved in an efficient and least costly manner, thus freeing higher courts for
more complex cases. A small claims court which handles only limited types of
cases will provide important access to the public.
Other Barriers to Access
Access can also be enhanced through the availability of collective
action mechanisms.ccxxi Such mechanisms reduce not only psychological and
information barriers to accessing justice, but also economic barriers, while
presenting important issues that might not otherwise appear before the
courts.ccxxii Class actions allow a more efficient, less costly manner for
providing a number of parties a vehicle to bring a common suit.ccxxiii A
slightly different mechanism has been created in the continental European
countries in what is known as the "collective action".ccxxiv Such mechanisms
create an environment that provides more power to the plaintiffs and
minimizes legal costs for each individual.ccxxv Additional measures for
reducing informational barriers include making court and legislative
documents publicly accessible, providing informational material on specific
legal issues, as well as furnishing simplified explanations of how the judicial
system works. Chile, for example, has produced information on how to obtain
a marital separation.
Finally, people should not face physical barriers to accessing the
courts, including geographical and physical access. Courthouses should have
facilities for physically challenged persons, and the court should be open to the
public during reasonable hours.ccxxvi In addition, persons who do not speak
the official language used in the courts should be provided with
translators.ccxxvii This can be an important issue in a country that has a large
indigenous population.ccxxviii The indigenous people may be intimidated not
only by the unfamiliarity of the court system but also by the language barrier,
thus creating additional impediments for the judge's ability to obtain the
necessary information for arriving at a just decision. Ecuador, for example,
does not provide translation facilities for its indigenous populations.ccxxix
Moreover, those persons who cannot read or write must also be provided with
adequate assistance to use the court system, and court personnel should be
trained and instructed to assist people in preparing the formal documents and
filing them in the court.
Gender Issues
Access to justice for women in Latin America is an area that merits
particular attention for a number of reasons. First, because of higher levels of
poverty, deficient education and lack of information, women face
disproportionately higher barriers to accessing justice than other social groups.
Women are more likely to be poor, and therefore, unable to overcome the
previously mentioned economic barriers. Latin American women have a 34.2
percent probability of being found in the bottom 20 percent of the income
distribution as compared to men who only have a 14.5 percent
probability.ccxxx Moreover, because women experience higher levels of
illiteracy they have a much lower level of knowledge about their legal rights
and the judicial system.ccxxxi One survey in Chile found that 30.5 percent of
the women, as compared to 21.7 percent of the men, did not know their legal
rights.ccxxxii Second, a large percentage of the cases before Latin American
courts (one-third) involve family law issues (see figure 5);ccxxxiii therefore,
any judicial reform will require analysis of the problems women confront
within the system.
FIGURE 5.
Total Number of Cases versus Family Cases Litigated, 1994
Finally, although a limited number of issues are highlighted here, all of the
areas of judicial reform must consider and be cognizant of the inherent biases
within the system against women in order to provide for effective judicial
reform.
As previously discussed, Latin American countries are increasingly
experimenting with ADR mechanisms to resolve family law problems. ADR
in family cases has been very successful in many countries including
Chile.ccxxxiv Several NGOs promote and support such ADR mechanisms. In
Peru, for example, an NGO handles women's legal problems through
mediation. The Ecuadoran NGOs have found that family-related cases are the
second largest number of cases. Although, as mentioned above, ADR
mechanisms may not be the ideal mechanisms given the imbalance of power,
it may be the only justice available to women, as is the case in Ecuador.ccxxxv
Other countries have responded to family law problems by establishing family
courts, as in Spain, Colombia, and in the Province of Tucuman in Argentina
while others have expressed an interest in family law courts, including
Ecuador, Peru and Chile.ccxxxvi
The fair treatment of women before the judicial system is
fundamental. Gender awareness programs within the judicial community
(lawyers and judges) should be part of any reform program. In the legal
community, research has revealed that women are perceived to be less credible
than men.ccxxxvii Due to the preponderance of beliefs such as these, women
will not receive justice if such perceptions are not addressed. Although some
of the laws are not gender-specific, the application of the law may be
discriminatory. In other cases, the law does not protect certain rights.
Examples of potentially discriminating applications of the law are family and
labor law issuesccxxxviii and violence against women. Finally, women should
be actively incorporated into the justice system as judges and lawyers in
increasing numbers.ccxxxix
Recommendations
In order to provide competition in resolving disputes, judicial reform
programs should consider both court-annexed ADR as well as private
ADR.ccxl The programs should target the court-annexed ADR systems first
since most of the procedural codes already include conciliation, mediation or
arbitration.ccxli However, since these mechanisms are generally not used,
judges and parties should be encouraged to use these systems and help educate
the public about existing ADR mechanisms, as is currently being done in Peru.
Pilot programs should be established to get courts and judges accustomed to
the process. Because judges are often fearful that ADR will take power away
from them, as has been detected in Ecuador, working groups that include
judges should design the pilot programs. Eventually, these very same judges
may promote the program to others within the judiciary. Arguably, judges
should take an active part in the pilot program -- some argue that perhaps they
could even be trained as mediators for court-annexed mediation programs.
Such a program could consider having mediation judges different from those
who would eventually decide the case as is being done in the labor courts in
the province of Tucuman in Argentina. Regardless of whether the ADR
mechanism is sponsored by the bar association, as in Lima, or by judges, as in
Ecuador, it is essential that one of these organizations, or a similar
organization, has ownership over the program in order to make it politically
viable.
Pilot programs can be developed in a wide variety of areas including
court-annexed ADR, private ADR or jueces de paz (as is the case of Bolivia).
It will be best to start with something that does not need legislative reform. In
some cases, the courts have some authority to authorize these pilot projects, as
has been done in Peru, Ecuador and Argentina. Such court-annexed programs
should be voluntary for the parties. In addition, to avoid creating further
delay, the mediation agreements should be binding on the parties and
enforceable in court so as not to add further delay to the process. Training and
evaluation components are essential to any pilot project. The evaluation
period should include discussions among the members of the legal and judicial
community, as well as, the public users of the programs.ccxlii Building on
this experience, legislative reforms may then be developed.
Judicial reform programs should concentrate on providing qualified
legal representation for the poor. However, providing project funding merely
to increase the number of public defenders creates a problem of sustainability.
Therefore, a legal defense fund which is demand- driven may be a more viable
alternative.ccxliii This would allow indigents to have representation from a
list of qualified attorneys. Priorities and the types of cases that constitute an
automatic right to representation as well as the appropriate income thresholds
would need to be established.
In addition, information should be provided to facilitate public use of
the judiciary. This could include providing translators for those who do not
speak the official language and assistance for those who do not read or write.
Improved access will also depend on court costs as well as lawyers fees that are
charged. Judicial reform programs should review court costs to determine
whether they are high enough to deter frivolous claims and corruptive
behavior but low enough to provide access. Lawyers fees should also be
reviewed in this way. For example, Argentina recently limited by law lawyer's
fees to a maximum of 25% of the judgment.
Gender differences create obstacles for women, preventing them from
accessing the legal and judicial system to enforce their rights. Including
gender issues in judicial reform programs is an important part of alleviating
poverty and achieving economic growth. Women constitute a majority of the
individuals using legal aid services; and therefore, by necessity the programs
should focus on areas that affect women most. In Peru, almost half of the
cases filed by the legal aid offices are family-related issues and the majority of
its users are women. In Ecuador similar results were found. ccxliv These
statistics indicate that family law issues affecting the majority of women
together with legal aid must be addressed in judicial reform programs.
Since cases that affect women represent an important part of court
caseloads, judges must be educated on these issues. They must be made aware
that specific gender issues are often involved in the cases before them. This
should include education with respect to family law, with emphasis on alimony
and domestic violence cases. In Peru, for instance, judges are provided with a
pamphlet concerning domestic violence to help them understand the issues
involved. This is essential if judges are to be sensitive to the cases that come
before them. Additionally, a survey should be conducted of the gender bias
that currently exists in the court system and the judicial community.ccxlv A
fair system of justice cannot exist unless the decision-makers, that is the
judges, are not cognizant of and begin correcting, at the very least,
unintentional biases of the current system. In many instances, such as in the
above noted custody situation, the law itself is gender-neutral, but it is applied
in a discriminatory manner. Women should also be provided with knowledge
about the services available to them for accessing the judicial system or extra-
judicial services and information with respect to legal issues affecting them.
LEGAL EDUCATION AND TRAINING
The improvement of legal education is fundamental for judicial
reform. Legal education and training for students, continuing legal education
for practicing lawyers, judicial training for judges and legal awareness
education for the public are key areas of reform. Legal education and training
at every level is important, but the fundamental change must start in law
schools. The quality of education in the law schools is said to have
deteriorated in many countries over the years. In fact, in Brazil many cite this
as the primary reason why graduates cannot pass the judicial entrance
exam.ccxlvi Priority areas for law school reform include establishing entrance
and graduation requirements and revising curricula.
In most Latin American countries the public universities have no
entrance requirements, and each school establishes its own graduation
requirements.ccxlvii Additionally, most countries do not have national legal
education standards.ccxlviii High standards for admissions and graduation
must be established as a preliminary step to addressing some of the problems
of the legal education system. A number of issues should also be considered
with respect to revision of law school curricula, including specialty classes,
teaching methods and practical training. Current law curricula offer little in
the way of specialty law classes that might include intellectual property, law
and economics, environmental law, secured transactions, finance, and
accounting. Teaching methods focus predominantly on the traditional lecture
method, which provides little opportunity for student-professor interaction.
Although schools generally offer minimal practical training to students, some
schools have established legal aid programs where students learn to assist
those who have been incarcerated. Such a program is important both for the
judicial system as well as the education of the students. Chile and Venezuela,
as well as Germany and Canada, require practical training before receiving the
right to practice law.ccxlix In Chile, lawyers must complete a six-month non-
paid internship with the legal aid office to receive a license given by the
Supreme Court.ccl
Law school professors also lack the necessary tools to improve the
legal education system. Due to low salaries, law professors usually work on a
part-time basis, and therefore, have little time to devote to research and reform
of the legal education system, or the judicial system.ccli The part-time
professors have the advantage of adding practical experience to the classroom,
but such benefits are often at the expense of class preparation and research
activities. Ideally there should be a mix of full-time professors and
practitioners. Student research is also limited to graduation-requirement
theses. Currently, the University of Buenos Aires (UBA), Argentina's primary
law school, is attempting to create a Master's program in order to better
prepare lawyers for practice. As it stands now, the public institution's open
access policy has made it impossible to manage quality:cclii the university has
over 30,000 students. Although the law school is thought to be the best in
Argentina, the standards have significantly decreased over the past years.
Consequently, the Master's program is one attempt to increase these standards
at UBA.ccliii
In most countries in the region, limited or no continuing legal
education (CLE) exists for practicing attorneys. Some countries do offer
seminars but not on any systematic basis. However, a well-planned and
organized continuing legal education program is essential for lawyers to keep
abreast of changes in the laws and learn skills to better serve their clients. Bar
associations, together with law schools, should be encouraged to take a lead in
providing such training to its members. One effort was made in Chile, but
with little success. However, in Mexico, successful programs have been
developed by the law schools. When implementing a CLE program, it must be
decided whether it will be mandatory or voluntary.ccliv Additionally, the
types of courses offered must be decided. In addition to substantive legal
courses, courses need to be provided with respect to case management
techniques for lawyers, as it has been shown that many lawyer errors are due
to poor administration of law practice.cclv
Judicial training must include both initial training and continuing
legal education. This is especially true for new judges that sometimes come
from private practice and have limited experience. In these instances judicial
training is indispensable. Basic training should include courses that assist
judges in acting fairly, correctly and efficiently in their work. The courses
should cover general subjects that all judges need to master, subjects relating
to specific duties (including court and case management techniques) and new
developments dealing with emerging areas of law and societal concerns.cclvi
Judicial training institutions can be roughly divided into two models:
the judicial school and the peer group model. Under the civil law system,
countries tend to have judicial schools under the Ministry of Justice since it is
responsible for training prosecutors and attorneys, as well as judges. In this
case, courses tend to be general so that the different professions can
benefit.cclvii Moreover, judicial schools in civil law countries tend to have
permanent facilities with full-time faculty. In countries with judicial schools,
generally students must pass exams before they may enter the judicial career.
Incentives can be provided, as in France, for the students with the highest
scores to choose the type of position and location of assignment.cclviii
Under the common law system, training is the responsibility of the
judiciary using the peer group model since judicial and prosecutorial training
are conducted separately.cclix This model utilizes active judges who can share
their knowledge, experience and skills with others. It focuses on law as it is
practiced. There are usually no full-time faculty, no campus facilities or any
standard curriculum, but instead provides courses that address current
problems in handling cases.cclx Judges find that it is important to exchange
working methods and ideas with their colleagues in this manner since they
usually work in some degree of isolation.cclxi
Many Latin American countries are leaning towards the judicial
school model. Some of the countries have successfully established judicial
schools and others have tried and failed.cclxii Argentina has developed plans
for a Federal Judicial School, but it has yet to be implemented. Despite the
lack of a national school, several provinces have recently established judicial
schools. In Brazil, the 1988 Constitution mandated special judicial schools,
and some states have actually implemented this mandate on their own
initiative.cclxiii In January of 1993, Panama founded a judicial school under
the authority of the judiciary.cclxiv
Other alternatives or combined methods, however, should also be
considered since it may be difficult to establish a new institution. Such an
institution requires continuous investment over time. The judicial school in
Ecuador, for example, failed as an institution; it may have been successful if it
had been implemented as a series of courses. Additionally, many of the
proposed schools have been slow to open due to a general lack of agreement on
certain issues. Such is the case in Argentina where discussion continues as to
whether the training should be under the Chief Justice, the Ministry of Justice,
or be an independent public entity as is the case in Spain.cclxv Chile has
opted to create an independent institution that is currently in the process of
being established.cclxvi The school will adopt business school teaching
techniques and will train judges to be educators in the judicial school, thus
following the peer group model. In Chile, there has also been some effort to
train some Court of Appeal judges in the area of management. Such programs
can be designed by local business management schools in cooperation with the
courts; for example, a private business school in Chile designed its highly
successful five-day program. In Ecuador, a private university has also
expressed interest in designing a program under its business administration
school.
CLE education is the second element for a well-trained
judiciary,cclxvii as current judges need continuing judicial training in order
keep abreast of legal changes and new areas of law. Since there are few
courses offered, judges may, on occasion, attend seminars held by the bar
association as is the case in the Province of Tucuman in Argentina. In
Bolivia, 92 percent of the judges receive no additional training after law
school.cclxviii For emerging areas of law, judges who have had such cases in
their courts may act as trainers, in addition to experts in the areas.cclxix CLE
programs may also include live courses, handbooks for common problems and
questions, as well ascclxx, audiotapes and videotapes for study at one's own
pace.cclxxi
The type of judicial training provided should be carefully considered
during the reform process. Although the civil law countries concentrate on the
training of new judges and the common law concentrate on continuing
education for judges, both types of education are vitally important.cclxxii The
issues that have to be addressed for any judicial training program include:
whether training should be required for appointment; should there be a
minimum CLE requirement; should testing be required after graduation from
the judicial school; should the judiciary control education; should the training
staff be responsible to the judiciary; and should such staff be full-time
employees.cclxxiii
Finally, legal education must be provided to the public as well, with
respect to legal rights and familiarization with the judicial system itself. Part
of the initial intimidation of the judicial system is very often the public's lack
of knowledge with respect to how the system functions. Thus, public
education about the courts will increase the public's confidence and the
system's credibility.cclxxiv Some countries have implemented radio and
television programs to educate the public about the laws. These programs
have concentrated on providing certain groups important information about
their rights under the law. For instance, in Ecuador, a program called
"streetsmart" informs domestic workers about their rights and the obligations
of their employers. These programs can be very effective tools in educating
the public, and they should be expanded to cover other areas of the laws as
well. Some studies have indicated that once the public is informed of their
rights and the available legal services, they tend to be more motivated in
seeking assistance to address their grievances.cclxxv
In addition, the public should be educated about the importance of
judicial reform in order to obtain consensus and support for the reform efforts.
In this manner, the public will understand how the reforms are beneficial to
them as individuals and the society as a whole. In Argentina, 48 percent of
the public discuss judicial reform, but do not know the purposes of the
reforms.cclxxvi Countries that have generated public discussions about
judicial reform have also experienced the establishment of public interest
groups and research institutions focused on judicial reform. Such groups
contribute invaluable resources to the judicial reform effort by, for example,
conducting seminars on judicial reform, public surveys on the judiciary and
generating important public awareness.
Recommendations
Legal education at the university level is important for the future of
the legal profession, but it is an ambitious area that has had limited success in
the past. Therefore, it may be more useful to concentrate initially on specific
courses in the law schools and professional development for professors. In
addition, projects should attempt to encourage law schools to work together, as
illustrated by the Argentine example.cclxxvii It would also be important to
identify those schools that produce most of the judicial employees, in order to
target resources appropriately. An evaluation of the open access of law
schools should be done in order to prevent an excess supply of lawyers and
therefore, a misallocation of resources.
Legal education for judges should be carefully considered in any
reform process because even with the "best laws and the most modern court
system, justice can never be better than the people who administer it."cclxxviii
Judicial reform programs should concentrate on the training of judges, and
most importantly, on training for current judges as the current reforms will
only be successful if the sitting judges are convinced of the need for judicial
reform. New judges should also be trained, as is being done in the judicial
school in Uruguay, but training for current judges should begin first.
Groups of lawyers and judges, formed by types of jurisdiction (civil,
criminal, etc.), can identify their particular educational needs and design
suitable programs. However, a needs assessment may be necessary in order to
ascertain the needs of all the judges, for example, as is currently being done in
Ecuador. Thus, the committee would be cognizant of the needs of the majority
of judges. These committees should then evaluate each program through
professional user satisfaction measurements rather than formal tests. Once the
subject matter has been selected, judges with experience in these areas should
act as trainers. Additionally, as part of a CLE program, a judges' school
should consider providing the service of assisting judges in obtaining research
assistance on legal questions from a central legal staff at the school.cclxxix
For instance, in Costa Rica, judges can request assistance from the judicial
school for guidance on jurisprudence with respect to their caseload.
Judicial training also provides an appropriate forum to discuss
judicial views of problems in the judicial system, and thus, act as a vehicle for
proposing and discovering possible solutions, as well as obtaining their
support.cclxxx Gaining the support of judges for judicial reform is also
important for developing pilot courts. Such pilot courts can be an effective
means of building consensus for a national judicial reform effort. Initially,
mandatory course for judges should be established, especially in areas relating
to judicial ethics, using judges as trainers as is envisaged in Bolivia and
Ecuador. Additionally, the ideal training program should provide separate
education for attorneys, prosecutors, court personnel and judges.
Finally, public education should be included in the reform program.
This could also include public campaigns as a way to provide better education
and access to the population at large. With the necessary information
individuals and groups can organize themselves to take collective action as has
been successfully done by individuals in the Province of Tucuman in
Argentina.
BAR ASSOCIATIONS
The main role of the bar associations in all countries is to regulate the
profession through entrance requirements and the disciplinary system, to
provide legal training for its members, and provide basic legal services to the
community. In addition, bar associations should be encouraged to take an
active role in judicial reform.
The bar usually plays an important role in regulating the practice of
law under the supervision of the Supreme Court. The requirements for
qualifying as a practicing attorney, ethical standards and the disciplinary
procedures must be clearly established and enforced. Generally in Latin
America, the requirements to practice law entail merely holding a law degree
from a university and being a member of the bar; this is the case in Argentina,
Peru and Ecuador.
Another way to regulate the profession is through a disciplinary
system. Bar associations are responsible for enforcing the disciplinary system;
however, the mechanisms in place usually do not operate properly. In some
cases the ethical standards are overly vague and in other cases they simply do
not enforce standards in place.cclxxxi In addition, the punishments may be so
minimal that enforcement does not deter unethical behavior by the lawyers. In
Ecuador, sanctions for violation of the ethics code may include: imposition of
a fine ranging from 100 to 2,000 Sucres (approximately $0.05- $1.00)
according to the seriousness of the violation.cclxxxii Only recently did the
Peruvian bar acquire the power to expel a member. The ethical standards, as
well as the remedies available to the disciplinary system, must be reviewed and
then effectively enforced in order to provide the necessary accountability to the
legal profession.
In addition to regulation of the private profession, the bar association
should provide training for its members. Such training should include
substantive legal courses as well as courses in case management techniques.
Since bar associations represent practicing attorneys, they can also provide a
necessary forum to discuss changes in laws, make recommendations for
reform, and implement changes. Any reform in the judicial system requires
the cooperation and support of the lawyers. Bar associations can also play an
important role in the independence of the judicial system by ensuring the
public accountability of the judiciary. The bar association, in addition to
disciplining its own members who do not conform to the ethical standards, can
also encourage its members to report the behavior of judges who do not
conform to legal and ethical norms. Unfortunately, the bar associations are
often neither politically very strong nor highly respected by the members
themselves.
Finally, bar associations provide some basic legal services to their
community. These services are usually basic, but they can have an important
impact given the limited number of legal aid organizations available in the
region. One example is the bar association's Special Defense Fund in
Venezuela which provides legal representation for the poor.cclxxxiii Another
way to provide such services is through pro bono representation by bar
members, however, this not common in Latin America. Appropriate
incentives should be established to promote pro bono activity.
Recommendations
The bar associations should take a more active role in monitoring the
legal profession as well as the judiciary and establishing clear ethical
standards. These standards should be enforced by an effective disciplinary
system which can impose appropriate penalties. All ethics proceedings should
be published and made available to the legal profession and general
community. In addition, the bar should conduct continuing legal training and
provide support for the practical training of new law graduates, as in
Venezuela.cclxxxiv The bar association should also assist in improving access
to justice by providing legal representation to the poor. Many of the judicial
reforms will affect the legal profession, thus it is important that they become
participants and supporters of the reform process. This support can be
achieved through participation in working groups as well as encouraging the
bar associations to initiate reform programs as is being done with Peru's
mediation pilot programs.
IV. IMPLEMENTATION OF A JUDICIAL REFORM PROGRAM: POLICY
RECOMMENDATIONS
The Bank has been a relatively new participant in judicial reform
with a number of projects under implementation, preparation and even more
being contemplated. The majority of the Bank's work has been in Latin
America; and consequently, the Bank's work in this area is being examined as
other countries throughout the world only begin major reform efforts.cclxxxv
Through these experiences, it is clear that there is a need to define the
elements of an overall judicial reform program which can be adapted given the
country specific needs. Though country specific needs can only be assessed
after a country review, it is important that the review takes into account a
broad reform program which can be adapted given the country specific needs.
Though country specific needs can only be assessed after a country review, it is
important that the review takes into account a broad reform program which
can be implemented over time. As a result, it is important for the Bank to
develop a coherent approach to judicial sector projects since governments from
around the world are increasingly asking the Bank for assistance in the reform
process.
There have been several initiatives in the Latin American and
Caribbean Region which provide a basis for such an approach to judicial
reform. The Bank first began with a small judicial technology component in a
larger Argentine Sector Reform Loan in 1989 which has been successfully
completed and then a separate Judicial Infrastructure Loan in Venezuela in
1994 which concentrated on infrastructure, technology and some substantive
studies in other areas to compensate for the lack of a prior sector review.
During implementation, however, the Venezuela project has been substantially
revised to include support for the Judicial Council, judicial training and
workshops which have promoted judges' involvement in the reform process.
This experience has shown that such workshops should be conducted prior to
implementation in order to make the judges part of the decision-making
process.
During this same period, the Bank began developing a second
generation approach to judicial reform. In 1992 the Bank embarked on a
judicial sector review in Argentina financed by an Institutional Development
Fund Grant where a multidisciplinary and politically diverse team reviewed
many facets of the judicial sector including court administration, alternative
dispute resolution mechanisms, legal aid, bar associations, procedural codes,
legal education and training, infrastructure and successful reform efforts in the
country. The review was designed so that the team would discuss its findings
with an Advisory Committee composed of representatives from the Supreme
Court of Argentina, Supreme Court of the Province of Buenos Aires, Ministry
of Justice, and Law Schools. The composition of the team was also an
important aspect of the review process. The team consisted of national and
foreign lawyers specialized in different areas, business administration
specialists, a judicial sociologist, a court administration specialist, and a legal
education specialist. At the completion of the report a seminar was held in
Buenos Aires in 1994 to disseminate the results. The final report is now being
published for even wider dissemination since this was the first time in
Argentina that a report reviewed so many different aspects of the judicial
sector as well as compiled a list of work already completed in Argentina. In
1995, a judicial reform project was approved for Bolivia where several studies
had been completed, although not by the Bank, which influenced the
components that were included. The Bank adopted this review approach and
began producing its own sector work on the judicial system.
Judicial sector reviews are now considered to be a prerequisite for any
lending operation in the area of judicial reform. Although not as detailed as in
the case of Argentina, sector reports were later completed in Ecuador, Peru
and Trinidad and Tobago in order to initiate discussions with the
Governments and within the Bank on defining appropriate components for
individual lending operations. These sector reports have enabled the Bank to
build some expertise in this area and to disseminate reform efforts being
implemented in different countries as well as different regions. In Ecuador
and Peru, judicial reform projects are currently being prepared. The
preparation of these projects has aimed to include a broader range of
components than was included in the first project in Venezuela based on the
sector reports that were completed. In addition, project preparation has
included a broad participation by the legal community in the preparation of the
individual components as was the case in Ecuador. These experiences to date
in the region allow the Bank to develop further the elements of a coherent
approach for judicial reform.
Judicial reform has many integral parts as described in Section II,
though an initial reform program does not require that all the elements be
implemented at once. Judicial reform will require a systematic change in how
justice is delivered, and, therefore, should be expected to take generations to
achieve. As a result, judicial reform programs should be implemented in
stages: the sequencing of such stages should be planned taking into account
the costs and benefits of each stage in terms of the country's political capacity
and the judiciary's ability to implement such reforms.cclxxxvi The initial
stages, however, should avoid legislative reform because of its extremely costly
nature in terms of political capital, while in most cases implementing existing
legislation will provide significant improvements and build the necessary
confidence in the reform effort and the legal system. A preliminary outline for
implementing this strategy is outlined below.
Judicial reform should be conducted through a consensus approach
and should be initiated from within the country. Only if these two objectives
are met -- judicial reform from within and consensus -- will the reforms be
long-term systemic changes instead of superficial reforms subject to reversal.
This initiative to embark on reforms related to the judiciary has come from
within the countries themselves: the judiciary, executive, legal community,
and local NGO's. Local governments and groups have shown a strong
commitment to this process of reform by undertaking serious constitutional,
legal and procedural reforms as well as structural reforms in the judiciary.
These groups have created a stronghold on the reform effort and have taken
the lead in encouraging international development institutions to participate in
this process. These institutions provide different types of assistance. The
multilateral agencies including the World Bank and Inter-American
Development Bank,cclxxxvii are concentrating on reforms that relate to the
civil and commercial areas. On the other hand, the numerous bilateral
agencies including the U.S. Agency for International Developmentcclxxxviii
and the German GTZ through legal law foundationscclxxxix have been active
in the region in the penal as well as in the commercial and environmental
areas. These agencies play an important complementary role in assisting
judiciaries in their reform efforts.
In order to develop and implement a program, consensus is needed.
Consensus requires that the political limitations and the priority pragmatic
strategies be taken into account. This requires reform which incorporates
specific elements as described earlier together with a planned sequencing of
stages.ccxc In order to determine which elements are necessary a prior review
of the specific country's conditions is required by a multidisciplinary team.
This review would examine the various elements identified in Section II taking
into account the country's cultural, political, social and economic environment
and identify priorities. Given the present state of judicial systems and the rent-
seeking and vested interests within the current systems, the review should
recognize and target the elements of reform that are more likely to create
successful results. It may be beneficial to look for short term benefits for
judges and political actors in the beginning that compensate them for the short
term loss of rents, combining them with longer term benefits at later
stages.ccxci
Any program of judicial reform must consider the vested interests in
the judiciary, the bar associations, and the other branches of government.ccxcii
These vested interests can impede consensus. This can be viewed in terms of
the rent-seeking activities conducted by different groups within the public and
private sector.ccxciii Thus, it is important to build coalitions to overcome
these vested interests. For example, in Argentina, USAID had difficulty
implementing reforms before switching to constituency building.ccxciv
Preliminary projects have found that sometimes members of the bar have been
"reluctant to be personally associated with open discussions of reform that
might be seen as critical of the judiciary for fear that judges would become
biased against them in future cases."ccxcv USAID, for example, has found
that NGOs exercise very little leverage to implement reforms. They can
sometimes provide a strong coalition for legal reform, but building these
coalitions has been found to be difficult. Additionally, NGOs are often
accused of only representing one group in the country. In some countries,
NGOs originally thought that they could achieve reform without including the
judiciary, but this experience has failed outright. In Chile, the NGO approach
has been very positive due to the close relationship with the judiciary .
Similarly, free and effective media is necessary for building support and
generating public pressure for reform.ccxcvi In Chile, for example, media
coverage was very important for the Penal Code reform.
Projects should encourage the participation of a broadly composed
informal committee or judicial council (consejo) during the preparation and
implementation stage in order to promote consensus in the projects, provide an
obvious counterpart as well as ensure accountability. Such a committee should
ultimately be able to alleviate any struggle there may be between the executive
and the judiciary. In addition, it could build a much needed broader base of
consensus since many elements in the reforms reach well beyond the judiciary.
This broad based consensus is important for the success of the programs. In
some countries, judicial councils have already been established and in others
they merely have been created under law but not formed as in Argentina,
Chileccxcvii and Ecuador. In such cases where the judicial council is not yet
established but has been created under law, the government should be
encourage its establishment prior to preparation of any judicial reform project.
This will ensure some continuity through the process. In order to promote the
participatory approach, ideally it is the judicial council that should develop the
global plan for judicial reform and the specific action plan in conjunction with
the various other actors. One way to do this is through workshops and
seminars. However, if there is no judicial council, a similar but informal
committee could be established for project preparation as was done in Bolivia
and Ecuador.ccxcviii In either case, the committees should work closely with
working groups of judges, court personnel, lawyers, and the public.
In order to have the necessary support for such reforms it is important
that there be project ownership. Ownership can be achieved through a process
of creating a global plan created by the various actors (including the judicial
council or similar committee). This action plan has only been tried to date in
Ecuador, and it has been successful in planning future reform efforts. Other
methods have included holding workshops and town meetings in order to plan
a project for reform. This method was employed in Costa Rica where over
6,000 people participated in the design of the Inter-American Development
Bank Project. Sector reviews can provide the initial information necessary to
begin such discussions with the actors involved and with the government.
Among the many issues that should be included in such reports are those
described in the elements above.ccxcix As a result, a plan can be developed
together with the public and private sector. These efforts are important for
building the necessary consensus prior to implementing any reform since
judicial reform will affect the private sector, the public, the legal community,
as well as the members of the judiciary.
Though it is ideal to have full consensus, it may not be realistic.
Therefore, at some point it is important to begin some form of reform activity
while at the same time continuing the consensus building. Prolonged
discussions without concrete action can appear to lose value which can
ultimately frustrate the actors involved. Given the constraints of time,
resources and the country's political atmosphere one strategy for judicial
reform that may facilitate the necessary consensus-building process and that
does not require legislative changes are pilot projects. Judicial reform pilot
projects should aim at creating courts from which lessons of experience can be
drawn and subsequently applied to other courts. In this way, the judiciary is
able to build the capacity to manage projects and implement reform on a small
scale, later transferring those abilities to a much larger scale. In addition,
successful pilot projects also serve to convince judges and court personnel that
the changes and reforms are worthwhile. Such pilot courts should be
evaluated, and the results should be disseminated throughout the country via
seminars and workshops. The judiciary can verify the real needs of the courts
in the actual pilot project and later adjust the reform measures appropriately.
Thus, the pilot courts may build a consensus that is necessary for widespread
reforms and allow the courts to experiment and improve pilot projects in later
phases of the overall program.ccc Therefore, initial pilot projects provide
stepping stones upon which the public and the courts can develop a basis by
which to judge the reforms and form opinions about what should be achieved.
Knowledge of the judiciary is essential and this knowledge can be
enhanced through empirical research. Such research is beginning to be
conducted on some aspects of judicial reform including on pilot courts. One
important role for the Bank is to assist in providing more empirical
information that can be used to evaluate and gain greater knowledge about an
individual country's judicial system. This could include research similar to the
procedural time study conducted under the preparation of the Bolivia Judicial
Reform Project and the study recently completed identifying factors of delay in
the judicial process in Argentina and Ecuador.ccci With the availability of
empirical information performance standards can be developed by which to
evaluate the success of judicial reforms.
This approach as outlined above has the potential to be successful in
the Latin American and Caribbean Region. The objectives and methodology
as set out in this paper distinguish these reform efforts from the law and
development movement of the 1960s and 1970s which aimed to modernize the
legal systems of developing countries by concentrating on legal education.
cccii Today, legal education is only one element of the judicial reform
program. The program is based on a holistic approach which is developed by
the local legal communities. Legal communities are better informed than
before about comparative law, regularly participate in international legal fora,
and have a better understanding of how laws and the judiciary impact their
society and what types of legal and judicial reforms are likely to succeed given
the country's cultural, political, social and economic environment.
The Latin American and Caribbean Region today is politically,
economically and socially better suited for judicial reforms than in the 1960s
and 1970s. There is greater economic stability in the region which has allowed
these countries to begin the so-called second generation reforms discussed
earlier. The economic reforms have also increased transactions with unknown
actors and thus has increased the demand for formal mechanisms to resolve
conflicts. In addition, society expects the improvement of the legal checks and
balances on the government. Second, the reforms are a result of the local
initiative and strong commitment: there is wide support among governments
including across political parties, legal community, private sector as well as
among NGOs for such reforms. Third, the programs include a wide variety of
elements which are specifically designed for country needs.
Judicial reforms in the 1990s take into account local conditions as
well as international standards. To determine the exact reform measures
needed to achieve this goal the social, cultural and economic aspects of a given
country are considered.ccciii This can be assisted in part through Bank
financed judicial sector reports consisting of a multidisciplinary and politically
diverse team. In addition to the local considerations, reform measures also
take into account the rights recognized by the international community.ccciv
These internationally recognized values provide some important standards for
reform. For example, there are basic principles of judicial independence as
defined by the United Nationscccv as well as the International Bar Association
Code of Minimum Standards of Judicial Independence. These principles were
developed to enhance the international principles on human rightscccvi and
cannot be ignored during such reform processes. When there is no "fair and
public hearing by an independent and impartial tribunal" there is a violation of
these human rights principles.cccvii The elements of judicial reform as
discussed earlier directly seek to attain these principles.
The objective of these projects today is to provide a service that is
efficient and equitable as well as respected and valued by the community. In a
market economy, an effective judicial system is expected and needed by
citizens, the government and the private sector in order to resolve conflicts and
order social relationships. As markets become more open and transactions
more complex, formal and impartial judicial institutions will be essential.
Without such institutions, private sector development as well as public sector
modernization will not be complete. Similarly, such institutions contribute to
the economic efficiency and lead to growth which in turn alleviates poverty.
Judicial reform should especially be considered in tandem when contemplating
any legal reform because without a functioning judiciary, laws cannot
effectively be enforced. As a result, comprehensive judicial reform can have a
tremendous impact on the success of the modernization of the state as well as
make an important contribution to the overall development process.
REFERENCES
Gonzalo Armienta Calder¢n, "La Oralidad come Expresi¢n Simplificadora del
Proceso," in Justicia y Sociedad 743 (1994).
Harry Blair and Gary Hansen, Weighing in on the Scales of Justice Strategy:
Approaches for Donor Supported Rule of Law Programs 30 (USAID, Program
and Operations Assessments, Feb. 1994) 30.
Carlos A. Astiz, "A Comment on the Judicial Interpretation of the Federal
Court Interpreters Act," 14 The Justice Sys. J. 103-9 (1990).
Hilary Astor, "The Unrepresented Defendant Revisited: A Consideration of
the Role of the Clerk in Magistrates' Courts," 13 J. of L. and Society 225
(1986).
Theodore Lewis Becker, Comparative Judicial Politics 144 (1970).
Marcos Afonso Borges, "La Justicia de Peque¤as Causas en el Brasil," in
Justicia y Sociedad 657 (1994).
Keith O. Boyum, "Afterword: Does Court-Annexed Arbitration 'Work'?" 14
The Justice Sys. J. 244, 245 (1991).
Colin I. Bradford Jr., "Redefining the Role of the State: Political Processes,
State Capacity and the New Agenda in Latin America" in Redefining the State
in Latin America (1994).
Hans-Jurgen Brandt, En Nombre de la Paz Comunal: un An lisis de la Justicia
de Paz en el Per£ (1991).
Alan R. Brewer-Car¡as, Judicial Review in Comparative Law (1989).
Nicholas D.S. Brumm, "Divergent Models of Public Law in Latin America: A
Historical and Prescriptive Analysis," 24 Univ. of Miami Inter-American Law
Rev. 1 (1992).
James M. Buchanan and Gordon Tullock, The Calculus of Consent-Logical
Foundation of Constitutional Democracy (1962).
Stephen B. Burbank, "Politics and progress in implementing the Federal
Judicial Discipline Act," 71 Judicature 13 (1987).
Shahid Javed Burki and Sebastian Edwards, "Consolidating Economic
Reforms in Latin America and the Caribbean," 32 Finance and Development 7
(1995).
Edgardo Buscaglia and Maria Dakolias, Judicial Reform in Latin America:
Economic Efficiency vs. Institutional Inertia, Working Paper Series, Econ-
2377-06-495, School of Business Administration, Georgetown University
(1995).
Edgardo Buscaglia and Maria Dakolias, Delay Study (1995).
Robert M. Campbell, "Judicial Budget Board to Unify Judiciary's Requests for
State Funds," Texas Bar Journal, 1229-36 (Nov. 1984).
Mauro Cappelletti, "Alternative Dispute Resolution Processes within the
Framework of the World-Wide Access-to-Justice Movement," 56 The Modern
Law Rev. 282 (1993).
Mauro Cappelletti, Bryant Garth and Nicolo Trocker, "Access to Justice
Variations and Continuity of a World-Wide Movement," 54 Revista Juridica
de la Universidad de Puerto Rico 221 (1985).
Mauro Cappelletti, "Who Watches the Watchmen?: A Comparative Study on
Judicial Responsibility," 31 Am. J. Comp. L. 1 (1983).
Mauro Cappelletti and Bryant Garth, Access to Justice A World Survey
(1978).
Thomas W. Church, Jr. "Who Sets the Pace of Litigation?" 65 Judicature 76
(1981)
Mary Louis Clifford and Lynn A. Jensen, Court Case Management
Information Systems Manual, National Center for State Courts (1983).
Ronald H. Coase, "The Problems of Social Cost," 3 J. of L. and Economics 1
(1960).
Committee on Legal Services to the Poor in Developing Countries, Legal Aid
and World Poverty: A Survey of Asia, Africa and Latin America (1974).
"A Courageous Course for Latin America: Urging the Ratification of ICSID,"
5 Houston J. of Int'l L. 157 (1982).
Development Associates, Inc, "Concept Paper for a Project to Strengthen the
Administration of Justice in Ecuador For the United States Agency for
International Development Mission to Ecuador," 5 (March 1993).
Thomas G. Dibble, A Guide to Court Records Management (1986).
Mary Francis Edwards, "The Nature and Value of CLE," Paper Presented to
the International Bar Association, Melbourne, Australia, Oct. 12, 1994.
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
Federal Judicial Center, Deskbook for Chief Judges of U.S. District Courts
(1993).
Pedro Fernandez Paredes, "Un Poder Judicial contra la realidad: Reflexiones
sobre el Proyecto de Ley Org nica del Poder Judicial", Advocatus.
Owen Fiss, "The Right Degree of Independence," in Transition to Democracy
in Latin America: The Role of Judiciary (1993).
Victor E. Flango and Mary E. Elsner, "Estimating Caseloads: Two Methods
Tested in Tulsa," 7 State Court J. 18 (1983).
Fernando Flores-Garc¡a, "Sistemas de Acceso a la Judicatura en M‚xico," in
Justicia y Sociedad (1994).
Peter Ford, Judges as Managers: Some Recent Developments in Judicial
Administration in United States and Canada, Report in SES Fellowship (Aug-
Nov. 1989).
FBIS, Dec. 13, 1994 (citing El Tiempo, Nov. 28, 1994 and El Tiempo, Dec. 1,
1994).
FBIS, Nov. 29, 1994, (citing Interview with Carlos Giusti Acuna, Head of the
Office for Supervision of the Magistracy in La Rep£blica).
FBIS, Nov. 29, 1994, (citing Angel Paez, "The Dreadful Court," La Rep£blica,
Oct. 9, 1994).
FBIS, Aug. 17, 1994 (citing La Naci¢n, June 13, 1994).
James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in
Latin America (1980).
Victor Garita, "Conceptual Basis for a New Arbitral Statute in Costa Rica: A
New Approach in Latin America," 65 Tulane L. Rev. 1633 (1991).
Horacio A. Grigera Naon, "Arbitration in Latin America: Overcoming
Traditional Hostility," 22 Univ. of Miami Inter-American L. Rev. 203 (1991).
Stephan Haggard and Robert Kaufman, "Democratic Institutions, Economic
Policy and Performance in Latin American," in Redefining the State in Latin
America (1994).
William A. Hamilton, "Computer-Induced Improvements in the
Administration of Justice," 4 Computer/Law J. 55 (1983).
Geoffrey C. Hazard, Jr., Martin B. McNamara, Irwin F. Sentilles, III, Court
Finance and Unitary Budgeting (1973).
Lori Heise, Jacqueline Pitanguy and Adrienne Germain, Violence Against
Women, World Bank Discussion Paper 255, 1994.
Heribert Hirte, "Access to the Courts for Indigent Persons: A Comparative
Analysis of the Legal Framework in the United Kingdom, United States and
Germany," 40 Int'l and Comparative L. Quarterly 91 (1991).
Walter Horn, "A Guide to Allocating Resources between Mediation and
Adjudication," 15 Justice Sys. J. 824 (1992).
Informe Nacional Sobre la Mujer (Marzo, 1995)
Instituto de Estudos Economicos, Sociais e Politicos de Sao Paulo, "La Crisis
do Judiciario Vista Pelos Juizes Rellatorio," (1995).
Instituto Gallop de la Argentina. Estudio de Opini¢n Acerca de la Justicia en
Argentina (1994).
Earl Johnson, "Thinking about Access: A Preliminary Typology of Possible
Strategies," in Access to Justice 3 (ed. Mauro Cappelletti, 1978).
Sharon Ladin, 1994 IWRAW to CEDAW Country Reports (December, 1993)
Robert Layton, "Changing Attitudes toward Dispute Resolution in Latin
America," 10 J. of Int'l Arbitration 123 (1993).
Paul M. Li, "How are Judicial Schools Compared to the Rest of the World," 34
Judges Journal 17 (1995).
Marilyn Loftus, Lynn Hecht Schafram and Norma Wikler, "Established a
Gender Bias Task Force," 4 Law and Inequality 103 (1986).
Steven Lowenstein, Lawyers, Legal Education and Development: An
Examination of the Process of Reform in Chile (1970).
Barry Mahoney, Changing Times in Trial Courts (1988).
Elaine Martin, "The Representative Role of Women Judges," 22 Judicature
166 (1993).
John P. Melver and Susan Keilitz, "Court-Annexed Arbitration: An
Introduction," 14 The Justice Sys. J. 123, 123-124 (1991).
H‚ctor Molina Gonz lez, "Tribunales de M¡nima Cuant¡a," in Justicia y
Sociedad 669 (1994).
Stewart S. Nagel and Marian Neef, "Time-Oriented Models and Legal Process:
Reducing Delay and Forecasting the Future." 1978 Wash. Univ. L. Quarterly
467 (1978).
National ADR Institute for Federal Judges, Judges' Deskbook on Court ADR
(1993).
National Center for State Courts, Trial Court Performance Standards (1990).
Frank E. Nattier, "International Commercial Arbitration in Latin America:
Enforcement of Arbitral Agreements and Awards," 21 Texas Int'l L. J. 397
(1986).
Charles W. Nihan and Russell R. Wheeler, "Using Technology to Improve the
Administration of Justice in the Federal Courts," 1981 Brigham Young Univ.
L. Rev. 659 (1981).
William Niskanen, Bureaucracy and Representative Government (1971)
Douglas North, Structure and Change in Economic History (1981).
Mancur Olson, The Logic of Collective Action (1971).
OAS, "Report of the Inter-American Juridical Committee on the 'Improvement
of the Administration of Justice in the Americas Protection and Guarantees for
Judges and Lawyers in Exercise of their Functions,'" 21-26 (Dec. 13, 1994).
Jos‚ Ovalle Favela, "Instituciones no Jurisdiccionales: Conciliaci¢n, Arbitraje
y Ombudsman" in Justicia y Sociedad 974 (1994).
Kenneth W. Pain, The Lay Magistrate: An elementary guide to the origins of
the office of Justice of Peace and to the structure and jurisdiction of
Magistrates' Courts in England and Wales (1988).
Douglas L. Parker, "Standing to Litigate 'Abstract Social Interests' in the
United States and Italy: Reexamining 'Injury in Fact'" (forthcoming in
Colombia University Law Review).
Carlos Pe¤a Gonzalez, "El Acceso a la Justicia: Elementos para la Reforma
Judicial." (forthcoming).
Poder Ciudadano, Private Initiative for the Control of Corruption, 1991-1992,
Project Proposal.
"Poder Judicial: sin vendas ni balanzas," Advocatus (No. 3, 1991).
Proposiciones para la Reforma Judicial (1991).
Proyecto BID-CONAM-MTRH Study (1994).
George Psacharopoulos, Samuel Morley, Ariel Fiszbein, Haeduck Lee and Bill
Wood, "La Pobreza y la Distribuci¢n de los ingresos en Am‚rica Latina:
Historia del Decenio de 1980," (June, 1993)
Jorge Reinaldo Navossi, "La Corte Suprema de Justicia de la Naci¢n y la
Expectativa de su Indepencia," Jurisprudencia Argentina, 8 No. 5903,
(October 18, 1994).
Research Papers of the National Commission on Judicial Discipline &
Removal (1993).
Eschel M. Rhoodie, Discrimination Against Women: A Global Survey of the
Economic, Educational, Social and Political Status of Women (1989).
Keith S. Rosenn, "Federalism in the Americas in Comparative Perspective,"
26 The Univ. of Miami Inter-Am. L. Rev. 1 26-27 (1994).
Malcolm D. Rowat, "Multilateral Approaches to Improving the Investment
Climate of Developing Countries: The Cases of ICSID and MIGA," 33
Harvard International Law Journal 1 (1992).
Malcolm D. Rowat, Waleed Malik and Maria Dakolias eds, Judicial Reform in
Latin America and the Caribbean, World Bank Technical Note 280 (1995).
Malcolm D. Rowat, "ADR in the Latin American Context," paper prepared for
the ADR Conference, Moneterrey, Mexico, Nov. 16-17, 1995.
Keith S. Rosenn, "The Protection of Judicial Independence in Latin America,"
19 Univ. of Miami Inter-American L. Rev. 7 (1987).
Lynn Hecht Schafran, "Credibility in the Courts: Why is there a Gender Gap?"
35 Judges J. 5 1995.
R. Scott and David Booth, "The Financing of Magistrates in the Courts in
England," 7 The Justice Sys. J 124 (1982).
Robert M. Sherwood, Geoffrey Shepherd, Celos Marcos de Souza, "Judicial
Systems and Economic Performance," 34 The Quarterly Rev. of Economics
and Finance, 101, 101-2 (1994).
Shimon Shetreet, "Judicial Independence: New Conceptual Dimensions and
Contemporary Challenges," in Judicial Independence the Contemporary
Debate 595, 598-9 (ed. Shimon Shetreet, 1985).
Ibrahim Shihata, "Judicial Reform: Issues Addressed in the World Bank
Projects," Paper Presented to the Inter-American Development Bank
Conference about Justice, Montevideo, Uruguay Oct.19-20, 1995.
Linda Silberman, Non-Attorney Justice in the United States: An Empirical
Study (1979).
Situaci¢n y Pol¡ticas Judiciales en Am‚rica Latina (ed. Jorge Correa Sutil,
1993).
Maurice J. Sponzo, "Independence vs. Accountability." 26 Judges Journal 12
(1987).
State Court Report (1995).
Beth Stephans, "A Developing Legal System Grapples with an Ancient
Problem: Rape in Nicaragua," 12 Women's Rights L. Reporter 69 (1990).
Maria Terza Sadek and Rogerio Bastos Arantes, "The Crisis of the Brazilian
Judiciary: The Judges Perspective," Paper presented at the XVIth World
Congress of the International Political Science Association 9 (August 21-25,
1994).
U.S. Department of State, 1994 Argentina Human Rights Report (March,
1995).
U.S. Department of State, 1994 Bolivia Human Rights Report (March, 1995).
U.S. Department of State, 1994 Brazil Human Rights Report (March, 1995).
U.S. Department of State, 1994 Uruguay Human Rights Report (March, 1995).
Joel G. Verner, "The Independence of Supreme Courts in Latin America: A
Review of the Literature." 16 J. Lat. Am. Stud. 463 (1984).
Max Weber, Law in Economy and Society (1954).
Christopher J. Whelan, "Small Claims Courts: Heritage and Adjustment," in
Small Claims Courts: A Comparative Study (ed. Christopher J. Whelan,
1990).
Women, Law and Development -- Action for Change (ed. Margaret A.
Schuler, 1990).
World Bank, Bolivia: Judicial Reform SAR, March 24, 1995.
World Bank, Ecuador: Judicial Sector Assessment (August 19, 1994).
World Bank, Ecuador: Private Sector Assessment (1994).
World Bank, "Gender Issues in Bank Lending: An Overview, June 30, 1994,"
Report No. 13246.
World Bank, Panama: Judicial Sector Assessment (work in progress).
World Bank, Peru: Judicial Sector Assessment (November 30, 1994).
World Bank, Trinidad and Tobago: Judicial Sector Report (1995)
World Bank, Venezuela: Judicial Sector Assessment (work in progress).
World Competitiveness Report (1994).
i Shahid Javed Burki and Sebastian Edwards, "Consolidating
Economic Reforms in Latin America and the Caribbean," 32 Finance and
Development 7 (1995).
ii Minister Rene Blattman, La Paz Presencia, Bolivia, July 22, 1994.
iii Edgardo Buscaglia and Maria Dakolias, Judicial Reform in Latin
America: Economic Efficiency vs. Instiutional Inertia, Working Paper Series,
Econ-2377-06-495, School of Business Administration, Georgetown
University (1995).
ivSee generally Max Weber, Law in Economy and Society (1954).
v Buscaglia and Dakolias, Judicial Reform, Supra note 3.
vi This paper is based on extensive field work in the region, but it
does not presume to include all the countries in the region and therefore the
list of experiences is not exhaustive.
vii Articles I (ii) and III Section 1 of the Articles of Agreement as
amended effective February 16, 1989. However, the Bank is not prevented
from financing court administration and infrastructure that include the
criminal courts, since often such reforms cannot be separated by jurisdiction.
See I. Shihata, "Legal Framework for Development: The World Bank's Role in
Legal and Judicial Reform," paper prepared for the World Bank Judicial
Reform Conference, June, 1994.
viii In Peru, 32 percent of those surveyed indicated that they would
not switch suppliers even if a lower price were offered. World Bank, Peru:
Judicial Sector Assessment (November 30, 1994) at 5. See also, World Bank,
Bolivia: Judicial Reform SAR (March 24, 1995). In Argentina, the cost of
debt collection is prohibitive where some 70% of the loans are at fault, but
banks do not bring actions to court.
ix The results of businesses surveyed throughout Latin America
indicate that the judicial system is considered to be among the top ten most
significant constraints to private sector development. The results of this
survey indicate that in samples of 60 to 100 firms per country, the majority of
these enterprises consider the role of the judiciary as "deficient." A survey was
conducted by the World Bank in May 1993 to determine the constraints to
Ecuadoran private sector development. In this survey, the judicial system was
considered to be the sixth most significant constraint to private sector
development. According to the business survey results, a malfunctioning
judiciary affects the decision of whether to invest because of the lack of
certainty and probability of delay in enforcing contractual rights. The results
of the 68 enterprises surveyed indicate that the most significant constraints to
private sector development were as follows: political instability, inflation and
price instability, lack of skilled labor, lack of infrastructure, high level of
taxation, poor functioning of the judicial system, regulatory constraints, access
to credit and lack of services. World Bank, Ecuador: Private Sector
Assessment (1994).
x Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xi According to the Coase Theorem, allocative efficiency will be
ensured once clear property rights are established and guaranteed by the
government. Consequently, the government does not need to intervene
further, because once private parties have clearly defined property rights, they
can bargain towards an efficient outcome. Ronald H. Coase, "The Problems of
Social Cost," 3 J. of L. and Economics 1 (1960). The current state of the Latin
American judicial system, however, does not provide for properly defined
property rights and thus prevents the efficient allocation of resources.
xii Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xiii Institute Gallop de la Argentina, Estudio de Opini¢n Acerca de la
Justicia en Argentina, March 1994. Moreover, only 16 percent of the public
polled in Argentina have confidence in that country's judges.
xiv Maria Terez Sadek and Rogerio Bastos Arantes, "The Crisis of
the Brazilian Judiciary: The Judges Perspective," Paper presented at the XVIth
World Congress of the International Political Science Association 9 (August
21-25, 1994) (citing FIBGE, "Justicya e Vitimizacao," 1 Participacao Politico-
Social, 1988).
xv Eighty-six percent of the population has either little or no
confidence in the overall administration of justice. Peru: Judicial Sector
Assessment, Supra note 8.
xvi Corruption cases involving judges and court employees are
common throughout the region. In particular, the poor reputation of Latin
American judges results from the public's perception that many judges use
their positions for personal gain, and consequently, apply the law arbitrarily.
In Peru, for example, the population's dissatisfaction with the judiciary has
increased dramatically, as represented by the number of disciplinary actions
filed. In 1991, 3,319 complaints were filed, while in 1993, 9,121 were filed.
FBIS, Nov. 29, 1994, (citing Angel Paez, "The Dreadful Court," La Republica,
Oct. 9, 1994). See I. Shihata, "Judicial Reform: Issues Addressed in World
Bank Projects" paper presented in Montevideo, Uruguay October 19-20 at the
Inter-American Development Bank Conference about Justice and Development
in Latin America and the Caribbean II.
xvii Carlos Pe¤a Gonzalez, "El Acceso a la Justicia: Elementos para
la Reforma Judicial," 9 (forthcoming).
xviii Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xix Edgardo Buscaglia and Maria Dakolias, Delay Study (1995). The
study found a 12 year expected delay for labor cases in Ecuador in 1991. In
the United States' state courts, 51% of the cases take more than two years to be
disposed of. National Center for State Courts, 1994.
xx In 1990, 4,209,623 cases were filed. Tereza Sadek and Bastos
Arantes, Supra note 14, at 9. By contrast in Japan's District Courts there were
a total of 563,000 cases pending at the end of 1995.
xxi Bolivia: Judicial Reform SAR, Supra note 8.
xxii World Bank, Trinidad and Tobago: Judicial Sector Report (July
1995).
xxiii The increase in cases filed may be a result in Chile of
privatization or an increase in pluralism in civil society. Pe¤a, Supra note 17,
at 24. Similarly, other authors have argued that new policies of economic
liberalization result in new patterns of transacting with new and unknown
actors; therefore, new types of disputes exist between private interests and
regulatory actors that the court must resolve. These actors argue that in either
what they term centrally planned or domestic mercantilist economies the role
of the courts is much less important than under an open market economy. In a
centrally planned economy, all disputes are resolved within the confines of
ministries. In a domestic mercantilist economy, the court generally does not
resolve disputes between the government and private entities as allocation of
resources is based on favor. Robert M. Sherwood, Geoffrey Sheperd, Celso
Marcos de Souza, "Judicial Systems and Economic Performance," 34 The
Quarterly Rev. of Economics and Finance, 101, 101-2 (1994).
xxiv Id. and Buscaglia and Dakolias, Delay Study, Supra note19.
xxv Paul M. Li, "How are Judicial Schools Compared to the Rest of
the World," 34 Judges Journal 17 (1995) (citing Judge Learned Hand).
xxvi Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xxvii Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xxviii Buscaglia and Dakolias, Judicial Reform, Supra note 3.
xxix Owen Fiss describes three different types of judicial
independence: first, party detachment, which is an independence from the
interests of the parties, second, individual autonomy, independence from the
bureaucratic judicial structure, i.e. other judges, and third, political insularity,
independence from the other governmental institutions. Owen Fiss, "The
Right Degree of Independence," in Transition to Democracy in Latin America:
The Role of Judiciary 55-6 (1993). Theodore Becker has defined
independence as follows: "(a) the degree to which judges believe they can
decide and do decide consistent with their own personal attitudes, values and
conceptions of the judicial role (in their interpretation of the law), (b) in
opposition to what others, who have or are believed to have political or judicial
power, think about or desire in like matters, and (c) particularly when a
decision adverse to the belief or desires of those with political or judicial power
may bring some retribution on the judges personally or on the power of the
court." Theodore Lewis Becker, Comparative Judicial Politics 144 (1970).
Keith S. Rosenn defines judicial independence as: "the degree to which judges
actually decide cases in accordance with their own determinations of the
evidence, the law and justice, free from coercion, blandishments, interference
or threats of governmental authorities or private citizens." Keith S. Rosenn,
"The Protection of Judicial Independence in Latin America," 19 Univ. of
Miami Inter-American L. Rev. 7 (1987).
xxx See Proposiciones para la Reforma Judicial (1991) (stating that
the public's decreasing respect in Chile for the judiciary results from structural
and organizational factors and that transparent mechanisms and mechanisms
for public control of the judiciary are as important as the principle of
independence).
xxxi Structural independence, as used here, refers to the judicial
branch's independence from the political branches of power, which in U.S.
constitutional law is accomplished by the concept of separation of powers. In
all Latin American countries, one observes the formal, structural independence
that is guaranteed in the constitutions of the region. Rosenn, Supra note 28, at
13. Some of the formalistic techniques placed in Latin American constitutions
to guarantee such independence include provisions that prohibit interference
by other branches of the government in judicial proceedings or prohibit other
branches from exercising judicial functions, require judges to write reasoned
opinions, provide for public trials when the case involves public officials,
prohibit the reduction of judicial salaries, guarantee the judiciary a fixed
percentage of the budget, specified tenure, pre-determined selection processes
and qualifications, prohibit involuntary transfers and prohibit certain extra-
judicial activities. Moreover, a number of Latin American countries provide
for certain types of judicial review mechanisms that allow courts, for example,
to declare administrative acts or a legislative act unconstitutional, as applied in
the specific case at hand. For descriptions of a number of judicial review
mechanisms in Latin America see Alan R. Brewer-Car¡as, Judicial Review in
Comparative Law (1989).
However, these structural mechanisms in Latin American
constitutions have not guaranteed the courts' decision making autonomy or
substantive independence. Buscaglia and Dakolias, Judicial Reform, Supra
note 3. Historically, interventions by the legislative and executive branches
have destroyed public confidence and trust in the judicial system and forced
judges to be even more dependent on the other branches of government. For
example, in Uruguay the government eliminated the judiciary as a separate
branch of government in 1977. In Argentina, the Supreme Court has been
completely replaced six times since 1946. OAS, "Report of the Inter-
American Juridical Committee on the 'Improvement of the Administration of
Justice in the Americas Protection and Guarantees for Judges and Lawyers in
Exercise of their Functions,'" 21-26 (Dec. 13, 1994). Keith Rosenn provides a
detailed list of instances where Latin American structural independence has
been violated, including: formal abrogation of judicial independence,
bypassing ordinary courts by setting up separate courts, dismissal of judges,
transferring and reassignment of judges, reduction of salaries and denying
enforcement of judicial decisions. Rosenn, Supra note 28, at 23-31.
Decision-making autonomy does not need clear separation of powers,
but rather a traditional respect for judicial authority emanating from the
legislature and executive branches. It may, therefore, be sufficient to develop
substantive independence as a way to ensure uniformity in the interpretation of
the law. It is interesting to note that the judiciaries in Canada, France,
Germany and Great Britain function with substantive independence, despite
their lack of structural independence. Buscaglia and Dakolias, Judicial
Reform, Supra note 3. In fact, one commentator has argued that the Latin
American countries have adopted a mixed system of judicial independence and
separation of powers relying both on the U.S. system of check and balances
and separation of institutions and the French system of separation of powers
but consolidation of institutions where judicial and administrative jurisdiction
are considered two distinct aspects of a single executive authority. This author
concludes that the Latin American countries do not have judicial independence
because of this structural intermixing, and they should move more towards the
French model and less towards the American model. However, this move will
be meaningless if there is no respect for judicial decision-making. Nicholas
D.S. Brumm, "Divergent Models of Public Law in Latin America: A
Historical and Prescriptive Analysis," 24 Univ. of Miami Inter-American L.
Rev. 1 (1992).
xxxii Shimon Shetreet, "Judicial Independence: New Conceptual
Dimensions and Contemporary Challenges," in Judicial Independence: the
Contemporary Debate 595, 598-9 (ed. Shimon Shetreet, 1985).
xxxiii For example, in Chile Judge Carlos Cerda Fernandez was
suspended from the Santiago Court of Appeals after refusing to close a case
that implicated armed forces officers in kidnapping and disappearance
charges. However, the judge was reinstated on appeal in 1991. OAS, Supra
note 32, at 30 (citing Lawyers Committee, 1991).
xxxiv One commentator lists seven factors cited as explanations of
the judiciary's traditional role of dependence: a tradition of executive
dominance, political instability, the Roman or code law system with little
support for judicial activism, the use of precedent and judicial law or policy or
policy making, the highly complex structure and processes of the judicial
system itself that prevents a number of issues from coming before the courts,
the limited use of judicial review, the lack of popular independent power base
in the population and the appointment, tenure and impeachment processes.
Joel G. Verner, "The Independence of Supreme Courts in Latin America: A
Review of the Literature." 16 J. Lat. Am. Stud. 463, 468-77) (1984). Verner
then attempts to quantify the levels of independence of the different Latin
American judicial systems and provide a typology of the same. Id. at 477-504.
xxxv The "recurso de amparo" in Mexico represents a good example
of the above. Buscaglia and Dakolias, Judicial Reform, Supra note 3. See
Keith S. Rosenn, "Federalism in the Americas in Comparative Perspective,"
26 The Univ. of Miami Inter-Am. L. Rev. 1 26-27 (1994) ("the Mexican
federal courts routinely review state court decisions in which the only federal
question is whether the state court correctly interpreted or applied state law . . .
This kind of amparo is called the amparo de la legalidad or the amparo-
casaci¢n. The Supreme Court leaves the interpretation of the facts to the state
courts, but every question of the meaning of state law can be converted into a
federal constitutional question. This has resulted in a deluge of cases filed in
the federal courts of appeals from state court decisions . . .").
xxxvi For example, in 1994, the Argentine Supreme Court removed a
highly visible case (the Shrimp Case) from a first instance judge.
xxxvii Shetreet, Supra note 32, at 598-99. According to Shetreet's
typology this is both personal and collective independence.
xxxviii In France, a judge cannot be moved to another court in a
different location without his or her consent, even if it is considered a
promotion. Research Papers of the National Commission on Judicial
Discipline & Removal 1449 (1993).
xxxix Id. at 1460.
xl Id. at 1461. See also Mauro Cappelletti, "Who Watches the
Watchmen?: A Comparative Study on Judicial Responsibility," 31 Am. J.
Comp. L. 1 (1983).
xli Colin I. Bradford Jr., "Redefining the Role of the State: Political
Processes, State Capacity and the New Agenda in Latin America" in
Redefining the State in Latin America 18 (1994).
xlii Stephan Haggard and Robert Kaufman, "Democratic Institutions,
Economic Policy and Performance in Latin America," in Redefining the State
in Latin America 71 (1994).
xliii Id.
xliv Bradford, Supra note 41, at 74.
xlv Fernando Flores-Garc¡a discusses the different methods for
selecting judges: designation or appointment, appointment by the judiciary,
popular election, appointment through contests, hybrid systems, and the
judicial career (judicial school). The author concludes that Mexico needs to
establish a judicial career and judicial schools. Fernando Flores-Garc¡a,
"Sistemas de Acceso a la Judicatura en M‚xico," in Justicia y Sociedad 217
(1994). Other authors have argued that appointment by the judicial system
itself creates "auto-generation" and "judicial nepotism". In Chile, it has been
found that some judges have as many as twenty-eight relatives in the judiciary.
Gisela von Muhlenbrock, "Discretionality and Corruption: the Chilean
judiciary," presented at the Corruption and Democracy Workshop, North-
South Center, University of Miami May 9, 1995 at 14. Instead, one such work
argues that a search committee, made up of temporary members, should be
created consisting of parliamentarians and judges. Proposiciones, Supra note
29. Finally, a Peruvian commentator has argued that judges should be elected
in order to have a more democratic system that is closer to the people, arguing
that the current nomination process is one of the largest barriers to judicial
independence. Pedro Fernandez Paredes, "Un Poder Judicial contra la
realidad: Reflexiones sobre el Proyecto de Ley Org nica del Poder Judicial",
Advocatus.
xlvi The judicial council is an administrative creation that has its
origin in many of the European court systems and was created to balance the
traditional powers of the ministry of justice. Although the councils differ
significantly from country to country, generally they are given powers over
selecting and nominating judges, overseeing judicial functions (including
promoting and transferring judges) and disciplinary processes. Such councils
will be discussed in greater detail under the relevant subject areas.
xlvii OAS, Supra note 31, at 42.
xlviii In Germany, for instance, the ministry of justice handles the
nomination process. National Commission, Supra note 38, at 1448.
xlix In Germany, the Executive Council of the Court provides
recommendations to the ministry of justice. Id.
l In France, judicial nominations come from the judicial school.
Student shortages have forced the judiciary to select lawyers who have
practiced for 25 years or in other cases exams are given to recruit judges in
certain age groups in an effort to promote diversity. Id. at 1441-2. In
Uruguay, for example, a candidate who has completed training in the judicial
school is very likely to be appointed; however, the system does not preclude
appointment of applicants who have not attended the judicial school.
li In Bolivia, 46 percent of the judges have become judges after
working first as clerks. Bolivia: Judicial Reform SAR, Supra note 8.
lii For example, in April 1992, PresIdent Fujimori in Peru rejected all
of the candidates for supreme court justices submitted by the Association of
Judges. OAS, Supra note 31, at 38.
liii To be named to a judgeship in a municipality in Chile, a
candidate must only have a law degree, practiced law for two years, and be 25
years old. Ley Organica, Art. 252. In Venezuela, judicial candidates need
only two years of experience. If, however, candidates do not have such
experience, they may take an intensive course for six weekends given by the
judicial school with judicial instructors. However, pursuant to new
requirements, judicial candidates must take a combined oral and written exam.
World Bank, Venezuela: Judicial Sector: Assessment: (Work in progress).
liv Terza Sadek and Bastos Arantes, Supra note 13, at 10.
lv In both Peru and Venezuela, the "concurso publico" systems have
only recently be implemented.
lvi In 1993 in Peru, about 50 percent of the superior court judges were
provisional judges without tenure, and therefore, were unwilling to take action
that might risk their jobs. Peru: Judicial Sector Assessment, Supra note 7.
lvii This violation does not even have to be explicit. In El Salvador,
for example, President Velasco, frequently changed the retirement age in order
to replace judges. OAS, Supra note 30, at 27.
lviii In Germany, after three years of probationary service, judges
become eligible to apply for life tenure. If rejected, they can reapply after five
years of service. National Commission, Supra note 37, at 1528. Some have
argued, however, that such probationary periods can have a detrimental effect
on the independence of the judiciary system. Shetreet, Supra note 31, at 624-
5.
lix In the United States, federal judges hold office during good
behavior and their compensation cannot be diminished during their term in
office.
lx Retirement ages exist in a number of developed countries as well:
Canada's is 75 years old; Australia's is 70 years old; Germany's is 68 for
federal judges; and France's is 65 years of age. National Commission, Supra
note 37, at 1407.
lxi Id. at 1408. Others have argued that the implementation of a
mandatory retirement age provides for new judges who are receptive to new
attitudes and ideas. One Chilean commentator has taken this view arguing
that an upper age limit should be placed on the judiciary in order to
permanently rejuvenate the judicial power and produce an evolution in the
interpretation of laws. Proposiciones, Supra note 29.
lxii In either case, a new judge could be appointed. Id. at 1408.
lxiii This system currently exists in Canada. Id. at 1429.
lxiv It should be noted, however, that in many countries, the base
salary does not reflect the total salary, and when the total salary is computed, it
may be significantly higher than the base salary.
lxv However, in France, a member of the judiciary receives the
highest salary for the civil service. National Commission, Supra note 37, at
1440. In Chile, the chief justice of the Supreme Court has a higher salary than
the president of the republic and other members of the judiciary have higher
salaries than other public sector jobs with the same professional requirements.
von Muhlenbrock, Supra note 45 at 13.
lxvi Buscaglia and Dakolias, Judicial Reform, Supra note 3.
lxvii Jorge Reinaldo Navossi, "La Corte Suprema de Just¡cia de la
Naci¢n y la Expectativa de su Indepencia," Jurisprudencia Argentina, 8 No.
5903, (October 18, 1994).
lxviii Mexico requires adequate compensation as determined
annually, and Peru's constitution ensures judges a compensation that is worthy
of their mission. OAS, Supra note 30, at 41. Similarly, in Canada, the
legislature determines judicial salaries. Id. at 51.
lxix U.S. Judicial salaries for first instance judges range from $61,740
to $113,000. 2 State Court Report 1 (1995).
lxx However, one author argues that the system in Chile is lacking
because the Supreme Court has final determination, the proceedings are secret
and the grounds are not discussed with the party involved. Codigo Organico
de Tribunales 1993 articles 273-78 as cited in von Muhlenbrock Supra note 45
at 10. In Bolivia, a basic performance evaluation system was adopted, and
Peru is planning to have five year periodic evaluations. Peru: Judicial Sector
Assessment, Supra note 7, at 24.
lxxi The Organic Code of Tribunals, Art. 275. Situaci¢n y Pol¡ticas
Judiciales en Am‚rica Latin 329 (ed. Jorge Correa Sutil, 1993). If there is a
unsatisfactory evaluation for two consecutive years, the judge is automatically
dismissed regardless of tenure. OAS, Supra note 30, at 41.
lxxiiJudges have performance evaluations every four years. Such
evaluations include the number of cases completed as well as other
performance measures. National Commission, Supra note 37, at 1451.
lxxiii Performance evaluations are a vehicle for making judges aware
of potential problems or inappropriate behavior. Id. at 1409. In 1983, the
National Center for State Courts launched a six-state project to develop a
system for evaluating judicial performance. Each of the six states have
developed their own pilot programs on how to improve evaluation processes.
Some of the approaches have included evaluation through bar and media polls.
Others have adopted committees that oversee judicial evaluation. Other
approaches include publishing case statistics. Maurice J. Sponzo,
"Independence vs. Accountability." 26 Judges J. 12 (1987).
lxxiv In France, for instance, a commission of judges, appointed by
the Ministry of Justice, conducts the promotion process according to standards
set by the Ministry of Justice. National Commission, Supra note 37, at 1442.
lxxv Bolivia: Judicial Reform SAR, Supra note 8.
lxxvi Situaci¢n, Supra note 71, at 53.
lxxvii In Canada, the Justice Department encourages lawyers, judges,
legal academics, citizens and members of parliament to submit candidate
names for judgeships. National Commission, Supra note 37, at 1426.
lxxviii An additional factor to be taken into account when creating a
supervisory organ is whether it should be centralized or decentralized. The
Peruvian head of the Office for Supervision of Magistracy has argued that the
Peruvian system should be decentralized with local supervisory offices that
receive complaints. FBIS, Nov. 29, 1994, (citing Interview with Carlos Giusti
Acuna, Head of the Office for Supervision of the Magistracy in La Rep£blica).
lxxix The Canadian Judicial Council receives and investigates all
complaints made against federal judges. National Commission, Supra note 37,
at 1411.
lxxx The U.S. Circuit Councils are composed of the chief circuit
judge and an equal number of circuit and district court judges who oversee the
district courts and review charges of judicial disability or misconduct. Federal
Judicial Center, Deskbook for Chief Judges of U.S. District Courts 24 (1993)
at 33. The judicial council's internal review process was created in 1980 by
the "Judicial Councils Reform and Judicial Conduct and Disability Act of
1980." Pursuant this system, "any person may file a complaint with the clerk
of the court of appeals for the circuit. The chief judge of the circuit reviews the
complaints, which he may dismiss if it does not meet statutory requirements, if
it directly relates to the merits of a decision or a procedural ruling, or if it is
frivolous. He can also conclude the proceeding upon finding that appropriate
corrective action has been taken. Otherwise, the chief judge must appoint a
special committee, consisting of the chief judge and equal numbers of circuit
and district judges, to investigate the complaint and file a report with the
council . . .". The council is then directed to take appropriate action.
Additionally, the complainant may petition the council to review the chief
judge's actions to dismiss an action or conclude a proceeding. Stephen B.
Burbank, "Politics and progress in implementing the Federal Judicial
Discipline Act," 71 Judicature 13, 15 (1987).
lxxxi In England, there is no commission for investigating
allegations; therefore, there is no effective public accountability because of the
lack of a defined disciplinary procedure. National Commission, Supra note 37,
at 1540.
lxxxii In Argentina, prior to the 1994 constitution, the legislature had
the sole responsibility for disciplining judges. Under this system, a significant
backlog was created. In 1994, the legislature had more than 350 cases of
judicial discipline waiting to be reviewed. "Conferencia Sobre la Reforma de
la Constituci¢n Nacional Aspectos Sobresalientes," Dr. Jos‚ Luis Lazzarini,
Profesor Titular de Derecho Constitucional de la Universidad de la Plata (June
22, 1995).
lxxxiii With the exception of supreme court judges who usually can
be removed solely by the legislature.
lxxxiv In Germany, the Court of Public Service composed of judges
decides on disciplinary actions. National Commission, Supra note 37, at 1532.
In Belgium, the court has jurisdiction over discipline. Id. at 1470. In Canada,
although decisions to discipline are scant, the number of complaints about
judicial behavior has increased. Additionally, there have been an increase in
the number of allegations of insults directed at women and minorities.
Unfortunately, judicial councils have determined that these comments were
"innocent and unfortunate". Id. at 1507. In Peru, one of the grounds for
removal of a judge is sexual harassment. FBIS, Supra note 77.
lxxxv In Mexico, a judge can be dismissed as well as prevented from
holding any other public office for up to fourteen years. However, there have
been no cases of removal or dismissal of judges found. National Commission,
Supra note 37, at 1608. In England, since judges must be removed by Her
Majesty judges are usually pressured into resigning instead of dealing with
these formal procedures. The Lord Chancellor, however, may remove lower
court judges. Since, 1971, only one judge has been dismissed by the Lord
Chancellor. Id. at 1536-38. The Canadian Judicial Council has never
recommended removal of a judge because judges often resign when a
recommendation for removal is expected. Id. at 1466. In Germany, removal
has never been used as a disciplinary mechanism even though it is an available
punishment. Id. at 1452.
Peru has a number of different levels of sanctions including warnings,
fines, suspension, separation and removal from office. Removal power lies
with the consejo, while the Office for the Supervision of the Magistracy may
impose the rest of the sanctions. In 1994, 538 sanctions were imposed with 33
representing separations. These figures include both judges and court
employees. No removals were imposed, however, because during that time
period the consejo had not yet been formed. FBIS, Supra note 77.
lxxxvi In Canada, for instance, the ability to suspend a judge's salary
as a part of removal proceedings has been declared an unconstitutional
interference with judicial independence. National Commission, Supra note
37, at 1432.
lxxxvii In Germany, federal judicial removal can only be decIded by
the Disciplinary Court composed of a three-judge panel. Id. at 1453. In
Quebec, the Court of Appeals makes final removal decisions. The Law
Association for Asia and the Western Pacific recommends that senior judges
have the responsibility for removal since removal by Parliament may be
abused. Id. at 1463.
lxxxviii Id. at 1436.
lxxxix John Hart Ely, Democracy and Distrust: A Theory of Judicial
Review 48 (1980).
xc Argentina and Ecuador have yet to establish these councils, and
some argue that in Ecuador the legislature does not want to give up the power
to appoint members of the supreme court. The seven members of the Peruvian
judicial council (Consejo de la Magistratura) include: two from the
universities, two from the Colegio de Profesionales, and one each from the
Ministerio Publico, the judiciary and the Colegio de Abogados de Lima. The
Peruvian judicial council, however, does not include a member of the
executive because of the politically sensitive recent history. Peru's judicial
council names judges without formal approval from the executive or legislative
branches. This exclusion of the executive, may, in effect, create further
problems because it ignores the Ministry of Justice's role in the administration
of justice.
xci Provincial councils in France and Canada follow this pattern.
The composition of the judicial council must be carefully considered because
of the conflict between judicial independence and accountability. National
Commission, Supra note 37, at 1473.
xcii Bolivia recently established a judicial council of five members,
headed by the president of the supreme court. It will be responsible for
administration, including human resources and judicial careers, through
enabling legislation that is currently being prepared. The Salvadoran judicial
council includes lawyers nominated by the supreme court, members of the bar,
judges form the various jurisdictional levels, law professors, and a
representative of the attorney general. The legislature elects all of the
members. Chile has proposed a Consejo Nacional de la Justicia, but there has
been no consensus to implement it.
xciii Costa Rica's Consejo is part-time, but most other Latin
American countries prefer a full-time composition.
xciv This may encourage judges to allocate more time to cases and
learning the law since the exams will require such knowledge while at the
same time publishing statistics will also encourage judges to allocate more
time to cases since there will be in a sense some competition among judges.
xcv Salaries should be carefully evaluated because the base salary
provides little evidence of the total remuneration. As is the case in Ecuador,
the base salary represents only 22.8 percent of total remuneration. In
Argentina, a supreme court justice with twenty years of experience receives
US$112,726 even though the base salary is only US$4,955 per month. In
addition, in Argentina, judges do not pay income taxes. Interview with Mr.
Robert Page, June 30, 1994.
xcvi In many Latin American countries, as well as in Australia,
"misbehavior" is defined pursuant a judicial discipline case opinion. Id. at
1418.
xcvii Id. at 1406.
xcviii World Bank, Ecuador: Judicial Sector Assessment 10 (Aug.
19, 1994).
xcix Buscaglia and Dakolias, Delay Study Supra note 18, at 27.
c In Germany, the Ministry of Justice is responsible for the overall
administration of the courts including preparing the budget. National
Commission, Supra note 37, at 1447.
ci Argentina adopted the idea of a Consejo de Administraci¢n some
time ago to transfer administrative responsibilities from the judges. However,
since the judges, viewing the project as a power struggle for the control of
their courts, did not want to give up their administrative responsibilities, the
idea failed.
cii For instance, a first instance judge in Ecuador has five support
staff members, and the superior courts each have six. In Argentina, the courts
of first instance at the federal and provincial level also have a set number of
staff members as provided in the Ley Organica. However, the number of staff
members is not the same for every superior court; instead, the number of
personnel is determined on the basis of their specific budget, which, in turn,
does not reflect the court's caseload. In some Argentine federal courts, there
are 32 personnel for every judge. Interview with Mr. Robert Page, June 30,
1994. In Bolivia, the personnel to judge ratio is 2.5 to 1. In Venezuela,
depending on the type of court, there may be a 19 to 4 personnel to judges
ratio. Venezuela: Judicial Sector Assessment, Supra note 53.
ciii A number of courts have "unofficial clerks" who are not
government payroll employees but complete the administrative responsibilities
on a free-lance basis receiving the court fees as payment of their services.
civ It should be noted, however, that it is difficult to determine the
actual number of judicial and non-judicial resources needed using only
caseload data without knowledge of what types of cases are being processed
and how they are being disposed. Mary Louis Clifford and Lynn A. Jensen,
Court Case Management Information Systems Manual, National Center for
State Courts 43, 54 (1983).
cv In Peru, the judiciary estimates that there is a 25-30 percent
shortage of judges. Lima Expreso, March 12, 1994.
cvi Tereza Sadek and Bastos Arantes, Supra note 14.
cvii In fact, the correlation between the number of judges per million
inhabitants and efficiency is quite low. Chile has 3.8 judges for every 100,000
inhabitants, Germany has 28 judges per 100,000 inhabitants, and Japan has 2
judges for every 100,000 inhabitants. Buscaglia and Dakolias, Judicial
Reform, Supra note 3. One extreme example of the low or non-existent
correlation between efficiency and the number of court personnel is Colombia.
It is the "leading [Latin American] country in numbers of judges per
inhabitant. There are 17 judges for every 100,000 inhabitants [, and it] ranks
second among countries contributing the most money to their judicial
systems...", but is has an estimated nine-year lag in judicial activity, according
to Justice Minister Nestor Humberto Martinez who argues the system does not
need more judges but improved organization and logistics. FBIS, Dec. 13,
1994 (citing El Tiempo, Nov. 28, 1994 and El Tiempo, Dec. 1, 1994).
Although there may be no correlation between the number of judges and
efficiency, such a comparison may still be relevant for considering access to
justice issues. In Santiago, Chile the number of courts was increased but the
total number of cases disposed remained unchanged, von Muhlenbrock, Supra
note 45 at 20.
cviii Harry Blair and Gary Hansen, Weighing in on the Scales of
Justice Strategy: Approaches for Donor Supported Rule of Law Programs 30
(USAID, Program and Operations Assessments, Feb. 1994).
cix This is one aspect of what Shimon Shetreet labels as collective
independence, that is, the judiciary's participation in the central administration
of courts. Shetreet, Supra note 31, at 598-9.
cx Although before 1939 the Department of Justice in the United
States handled the federal judicial budget, personnel, and audit issues,
currently these responsibilities are under the Administrative Office of the U.S.
Courts. The Chief Justice and the Judicial Conference appoint the director of
this Office. Deskbook for Chief Judges, Supra note 79. In Canada, however,
the Ministry of Justice defends the courts' budget in the legislature. OAS,
Supra note 30, at 49.
cxi Shetreet also argues in favor of this approach, which he labels the
exclusive judicial model of responsibility, contrasting it with the other two
models that currently exist: exclusive executive and shared executive-judicial
models. Shetreet, Supra note 31, at 646-9.
cxii In the U.S. state court budgetary processes, there has been a trend
toward unitary budgeting. This budgeting process is a fundamental departure
from traditional state court fiscal management in states. It consists of one
central authority, in this case the judiciary itself, with the responsibility for
planning, channeling and auditing judicial expenditures, whereas traditional
fiscal management relied on local funding, deriving revenue from various
sources and an inflexible connection with an expenditure schedule that is only
nominally a budget. It is argued that unitary budgeting allows better judicial
administration, more equitable distribution of judicial services and provides a
mechanism by which the judiciary itself can be effectively administered.
Geoffrey C. Hazard, Jr., Martin B. McNamara, Irwin F. Sentilles, III, Court
Finance and Unitary Budgeting (1973). A number of the states that
implement unitary budgets do so through judicial budget boards made up of
judges from the different levels of justice administration. See e.g. Robert M.
Campbell, "Judicial Budget Board to Unify Judiciary's Requests for State
Funds," Texas Bar Journal, 1229-36 (Nov. 1984). Consequently, this prevents
the budgeting from being skewed towards the higher court levels.
cxiii Constit. of Brazil, Art. 99: Constit. of Colombia, Art. 256(5);
Decreto No. 415, Diario Oficial, Jan. 13, 1993 (El Salvador).
cxiv See generally Victor E. Flango and Mary E. Elsner, "Estimating
Caseloads: Two Methods Tested in Tulsa," 7 State Court J. 18 (1983)
(describing the projection method and the forecast method for estimating
future case filings and concluding that both methods are viable methods).
cxv In Bolivia, judicial resources are allocated in an inverse
proportion to population. Bolivia: Judicial Reform SAR, Supra note 7.
cxvi Buscaglia and Dakolias, Judicial Reform, Supra note 3.
cxvii In Honduras, for example, even though the judiciary has a right
to 3.0 percent of the national budget, it generally receives about 0.5 percent
per year. In Ecuador, where the judiciary has a right to 2.5 percent of the
national budget, it received 0.96 percent in 1993, 1.4 percent in 1994 and 1.6
percent in 1995.
cxviii There is no significant correlation between judicial efficiency
and the size of the government budget allocated to the judiciary. Buscaglia
and Dakolias, Judicial Reform, Supra note 3.
cxix Interview with Mr. Robert Page, June 15, 1994.
cxx See American Courthouse--Planning and Design for the Judicial
Process, published 1978 and the California Trial Court Facilities Standards
adopted by the Judicial Council November 8, 1991, published by the Judicial
Council of California, Administrative Office of the Courts.
cxxi Ecuador: Judicial Sector Assessment, Supra note 96, at 6-7.
cxxii Development Associates, Inc, "Concept Paper for a Project to
Strengthen the Administration of Justice in Ecuador For the United States
Agency for International Development Mission to Ecuador," 5 (March 1993).
By contrast, in Japan, there were 762,000 cases pending in the civil,
administrative and family courts at the end of 1995.
cxxiii Interview with Mr. Robert Page, June 30, 1994.
cxxiv FBIS, Supra note 102.
cxxv Id.
cxxvi Thomas G. Dibble, A GuIde to Court Records Management
(1986).
cxxvii Clifford and Jensen, Supra note 106, at 66.
125 Case management includes administrative control and case
tracking functions done by the courts. This includes the need for planning
models, variance reports, caseload data, case status data, caseflow evaluation
and performance measurement reports, judicial and non-judicial workload
analysis, data resource allocation and planning and research reports. Id. at 39-
40.
cxxix Management information is essential. To acquire management
information there are three different kinds of reports: filing disposition ratios,
pending case inventory and time lapse studies. According to one author, the
time lapse studies are the most useful because they allow courts to identify
causes of delay. Peter Ford, Judges as Managers: Some Recent Developments
in Judicial Administration in United States and Canada, Report in SES
Fellowship (Aug-Nov. 1989).
cxxx Caseflow evaluation reports focus on the movement of cases and
the speed with which cases are processed. Clifford and Jensen, Supra note 106,
at 40-41.
cxxxi This type of analysis is very sophisticated and requires not only
caseload volumes and activity data but also actual or estimated judicial and
non-judicial workloads. It focuses on planning rather than expediting and
monitoring individual cases. Id. at 41.
cxxxii The case related data is especially important for estimating the
number of judges required to handle current and projected caseloads,
determining where such judges are needed, ascertaining how many non-
judicial personnel are needed, and, finally, planning what facilities and
equipment will be needed. Id. at 52.
cxxxiii Id. at 66.
cxxxiv Id. at 63.
cxxxv Id. at 66.
cxxxvi A large amount of research has been completed in the United
States with respect to court delays. See e.g. Barry Mahoney, Changing Times
in Trial Courts (1988); Thomas W. Church, Jr. "Who Sets the Pace of
Litigation?" 65 Judicature 76 (1981); Stewart S. Nagel and Marian Neef,
"Time-Oriented Models and Legal Process: Reducing Delay and Forecasting
the Future." 1978 Wash. Univ. L. Quarterly 467 (1978). However, little
research has been conducted in Latin America.
cxxxvii This includes case event and time interval data for projecting
how much time it actually takes to process specific types of cases and
providing long-range projections. Clifford and Jensen, Supra note 106, at 55.
cxxxviii Id. at 62.
cxxxix Judicial activism has been shown to decrease delays.
Buscaglia and Dakolias, Delay Study, Supra note 18.
cxl Situaci¢n, Supra note 71, at 325.
cxli Proposiciones, Supra note 29, at 92.
cxlii Thirty-nine percent of those surveyed indicated that the clerks
were the principle source of corruption. Peru: Judicial Sector Assessment,
Supra note 7, at 44.
cxliii Buscaglia and Dakolias, Delay Study, Supra note 18.
cxliv This can be patterned after the regional standards that currently
exist with respect to procedural codes. The Instituto Iberoamericano de
Derecho Procesal have adopted a number of regional standards including
procedural standards for conciliation.
cxlv The current system for records management will be upgraded
including adopting a records management system (numbering, disposition
schedules, etc.), purging of files that are no longer active so that the courts will
only have to deal with and store active cases, improving the judicial archive
system to allow for more storage of case files and updating records storage
equipment for trial courts.
cxlvi Colombia has recently implemented a national statistics system.
FBIS, Supra note 102.
cxlvii See generally, Charles W. Nihan and Russell R. Wheeler, "Using
Technology to Improve the Administration of Justice in the Federal Courts,"
1981 Brigham Young Univ. L. Rev. 659 (1981); William A. Hamilton,
"Computer-Induced Improvements in the Administration of Justice," 4
Computer/Law J. 55 (1983). The results of a computer pilot project in Peru
showed that judges' productivity doubled with the use of computers. Lima
Expreso, March 12, 1994. However, it should be noted, that simply providing
technology alone will not provide the projected benefits if there is not proper
training and utilization of such material. One Chilean lawyer noted:
"[t]here are courts in Santiago that have been equipped with computer systems
that have not produced results because the judges themselves resist using
them." FBIS, Aug. 17, 1994 (citing La Naci¢n, June 13, 1994).
cxlviii Buscaglia and Dakolias, Delay Study, Supra note 18.
cxlix Id.
cl For instance, in Ecuador two pilot courts have had very different
degrees of success due to the interests of those involved in implementing the
programs. The achievements of the successful pilot court have encouraged the
personnel and the judge to take their own initiative to expand the project.
cli For example, according to the Bolivian Minister of Justice, Bolivia
needs to enforce already existing statutory deadlines, but needs to reform the
civil and criminal codes of procedure to make them more oral and immediate.
FBIS, Aug. 29, 1994 (citing Presencia, July 22, 1994).
clii Ecuador: Judicial Sector Assessment, Supra note 98, at 6.
cliii This was the case in Argentina and is now being experienced in
Peru.
cliv Terza Sadek and Bastos Arantes, Supra note 13.
clv Id.
151 Cases take an average of 242 days to reach the sentencing phase;
a period for which 60 day time period is mandated. Venezuela: Judicial
Sector Assessment, Supra note 54.
clvii For example, since 1988, the Fuero Laboral in the Province of
Rio Negro sets specific time limits for the judge to make a decision, and if the
time limit is passed, that judge loses jurisdiction over the case.
clviii Bolivia: Judicial Reform SAR, Supra note 7.
clix The courts use 34 percent of the time used to dispose of a case,
while the litigants use only 7 percent.
clx Cappelletti (1978), Supra note 39, at 1031.
clxi Venezuela: Judicial Sector Assessment, Supra note 52.
clxii Ecuador: Judicial Sector Assessment, Supra note 96, at 6-7.
clxiii Bolivia: Judicial Reform SAR, Supra note 7 and Buscaglia and
Dakolias, Delay Study, Supra note 18.
clxiv National Center for State Courts, Trial Court Performance
Standards 8 (1990).
clxv Pe¤a, Supra note 16, at 28.
clxvi Trial Court Performance Standards, Supra note 161, at 9.
clxvii Earl Johnson, "Thinking about Access: A Preliminary
Typology of Possible Strategies," in Access to Justice 3 (ed. Mauro Cappelletti,
1978).
clxviii See generally, Mauro Cappelletti, "Alternative Dispute
Resolution Processes within the Framework of the World-Wide Access-to-
Justice Movement," 56 The Modern Law Rev. 282, 288 (1993).
clxix For example, 69.1 percent of the Brazilian judges interviewed
indicated that it is important to expand the use of extra-judicial conciliation in
order to improve the administration of justice. Terza Sadek and Bastos
Arantes, Supra note 13.
clxx Some of the disadvantages of formal litigation may include court
resolution time, the cost of litigation, attorney's fees, court fees in some
instances, and the parties' time and emotional costs. In addition, the parties
will have to spend time with their attorney to explain their desires and
concerns, and even then, the parties may lose control over the case. Since the
courts may not understand the circumstances of the case, the parties may also
have to educate the judges. Finally, there is the danger that the decision may
be based on procedural rules and not necessarily on the merits of the case.
National ADR Institute for Federal Judges, Judges Deskbook on Court ADR
(1993).
clxxi Notably, one study of court-annexed litigation in six states of the United
States found that such arbitration procedures did not affect the outcome of the
cases. Keith O. Boyum, "Afterword: Does Court-Annexed Arbitration
'Work'?" 14 The Justice Sys. J. 244, 245 (1991).
clxxii In the United States, conciliation and mediation have merged;
however, in Latin America the two have remained separate. In Latin America,
conciliation does not include a third party neutral. For a discussion of the
conciliation mechanism in Mexican law see Jos‚ Ovalle Favela, "Instituciones
no Jurisdiccionales: Conciliaci¢n, Arbitraje y Ombudsman" in Justicia y
Sociedad 974 (1994). Other ADR mechanisms may include early neutral
evaluation, summary jury trial, appellate ADR, court mini-trial and judge-
hosted settlement conferences. Deskbook on Court ADR, Supra note 167.
clxxiii For description of arbitration mechanisms currently existing in
Latin America see El Arbitraje en el Derecho Latinoamericano y Espa¤ol
(1989) and Malcolm D. Rowat, "Multilateral Approaches to Improving the
Investment Climate of Developing Countries The Cases of ICSID and MIGA,
33 Harvard Int'l Law J. (1992). Similarly, a number of authors have
encouraged the use of arbitration in Latin America. "A Courageous Course for
Latin America: Urging the Ratification of ICSID," 5 Houston J. of Int'l L. 157
(1982); Victor Garita, "Conceptual Basis for a New Arbitral Statute in Costa
Rica: A New Approach in Latin America," 65 Tulane L. Rev. 1633 (1991);
Robert Layton, "Changing Attitudes toward Dispute Resolution in Latin
America," 10 J. of Int'l Arbitration 123 (1993); Horacio A. Grigera Naon,
"Arbitration in Latin America: Overcoming Traditional Hostility," 22 Univ.
of Miami Inter-American L. Rev. 203 (1991); Frank E. Nattier, "International
Commercial Arbitration in Latin America: Enforcement of Arbitral
Agreements and Awards," 21 Texas Int'l L. J. 397 (1986).
clxxiv Deskbook on Court ADR, Supra note 167.
clxxv In Tucuman for example, where judges act as mediators in
family courts there is only a 20% success rate.
clxxvi In Peru, the judges mediate; while in many other Latin
American countries, clerks conduct the mediation.
clxxvii USAID, Supra note 107, at 39.
clxxviii In Colombia, the 1991 Constitution created the justice of
peace, who should decide conflicts based on equity. Situaci¢n, Supra note 71,
at 129, 170. In Argentina, the justices of the peace have been eliminated on
the national level, but they are still used on the provincial level. Id. at 82.
The Minister of Justice of Bolivia, Rene Blattman has also suggested
introducing justices of the peace in Bolivia. FBIS, Supra note 148, at 49-50. In
some countries, as in Peru, they are predominantly lay magistrates. However,
in a number of countries, for example Mexico and Uruguay, the justices of the
peace are law-trained. Countries outside of Latin America are also
experimenting with this institution. A recent Italian statute, which took affect
on January 1, 1993, established over 4,000 justices of the peace, who have the
ability to decide cases based on equity rather than law. Cappelletti (1993),
Supra note 165. It is interesting to note that the justice of peace systems in
Argentina, Mexico and Peru, have long been a part of the judicial system, but
have only been recently incorporated into the Colombian and Venezuelan
systems.
clxxix In some countries, however, they are an integral part of the
formal judicial system. In the United Kingdom, the magistrates (justices of the
peace) are an essential part of that justice system, who, unlike the Latin
American institutions, have primary responsibility for criminal matters. In
fact, the magistrates dispose of 90 percent of all criminal cases. R. Scott and
David Booth, "The Financing of Magistrates in the Courts in England," 7 The
Justice Sys. J 124 (1982). A number of other countries use lay persons in their
judicial systems. In Germany, for example, lower courts use lay judges to
decide cases on panels with trained judges as a substitute for a jury. National
Commission, Supra note 37, at 1447.
clxxx In some of the Argentine provinces, they are appointed by the
Courts. In Peru, the law provides for popular election of the justices of the
peace, but currently, the superior courts are appointing the justices. Peru has
approximately 4,300 lay justices of the peace. Peru: Judicial Sector
Assessment, Supra note 7, at 57.
clxxxi In England, the magistrates are volunteers but receive
reimbursements for administrative costs. In Peru, justices of the peace are
volunteers and only recently have begun to receive funds for administrative
costs.
clxxxii The Peruvian system, for example, provides for both law-
trained and lay justices of the peace. Peru: Judicial Sector Assessment, Supra
note 7, at 56.
clxxxiii Magistrates in England are lay individuals who receive extensive
training before assuming office and refresher training in each three year period
following the year of appointment. Kenneth W. Pain, The Lay Magistrate:
An elementary guide to the origins of the office of Justice of Peace and to the
structure and jurisdiction of Magistrates' Courts in England and Wales (1988).
Additionally, an important aspect of the Magistrates' Courts is the law clerk,
who is a permanent employee that provides administrative abilities and legal
guidance to the lay magistrates. Hilary Astor, "The Unrepresented Defendant
Revisited: A Consideration of the Role of the Clerk in Magistrates' Courts,"
13 J. of L. and Society 225 (1986). In Venezuela, the justice of peace, who is a
lay person appointed for a two year period, must complete training.
Venezuela: Judicial Sector Assessment, Supra note 52.
clxxxiv Hans-Jurgen Brandt, En Nombre de la Paz Comunal- un
Analisis de la Justicia de Paz en el Peru (1991).
clxxxv This is the case in the English judicial system. However, this
is not the case for more serious crimes.
clxxxvi In Peru, 63 percent of those surveyed stated they were
satisfied with the outcome of the proceedings. Brandt, Supra note 180, at 180.
clxxxvii The advantages often cited on behalf of implementing a
justice of peace institution include the fact that it is considered more
democratic justice because it is administered by a lay person; it provides
judicial service at a low cost because the justices are not part of the formal
justice system and are either not paid or paid very small salaries; and the
justice of peace system can reach areas of the country that the formal justice
system does not reach. However, others argue the disadvantages of the
institution include a lack of control and accountability over the justices; the
impairment of legal rights because of the lay nature of the justices; persistent
conflict of interests because the justices are part of the community; and
confusion of the public and justices about the jurisdiction and powers of the
justices.
clxxxviii For example, the justice of peace system may provide justice
in situations where no court is available or where the closure of courts during
non-working hours prevents access. The justice of peace system in the state of
New Mexico, according to one lay justice, provides access on an almost 24-
hour basis to resolve personal and community disputes and provide advice,
stating that most of these problems the justices confront are resolved
informally and off the record. Linda Silberman, Non-Attorney Justice in the
United States: An Empirical Study 71 (1979).
clxxxix Interview with Dr. Elena Heighten and Dr. Gladys Alvarez of
Libra Foundation (June 5, 1994).
cxc Mauro Cappelletti emphasizes the following issues to be
addressed when instituting ADR mechanisms: which institutions should be
promoted, the best kinds of persons to staff such institutions and the minimum
standards and guarantees to be maintained. Cappelletti (1993), Supra note
165, at 288; see also Proposiciones, Supra note 29 (stating that when
implementing an ADR program it's necessary to determine the jurisdiction of
the arbitrator, define discovery powers, specify procedures and limitations for
proceeding against the arbitrator's decision, provide enforcement mechanisms
and determine the award's effect on third parties).
cxci Court-annexed mediation as currently being experimented with
in Latin America, unlike court-annexed arbitration in the United States, is
voluntary not mandatory. U.S. Court-annexed arbitration, also referred to as
"mandatory", "compulsory" or "court-ordered" arbitration, has criteria
established either in a statute or in a court's rules that identify cases eligible for
arbitration. If a case falls within these criteria, the parties must go to
arbitration as a prerequisite for trial. Additionally, unlike commercial or
private arbitration, U.S. court-annexed arbitration is nonbinding. Therefore,
all arbitration decisions may be appealed. In the United States, almost half of
the states and at least 10 federal district courts have court-annexed arbitration.
In the state programs, most "apply only to civil cases and deal with relatively
small claims without complicating factors (e.g., demands for equitable relief,
class action suits, family law issues). A few programs . . . focus on specialized
cases, e.g., torts or auto damage claims." See John P. Melver and Susan
Keilitz, "Court-Annexed Arbitration: An Introduction," 14 The Justice Sys. J.
123, 123-124 (1991). This article provides a comprehensive survey of the
different state court systems with respect to jurisdictional boundaries,
arbitrator qualifications, arbitrator selection and compensation, arbitration
hearing procedures and rights of appeal.
cxcii Convention on the Settlement of Investment Disputes between States and
Nationals of other States, March 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159.
See Malcolm Rowat, "ADR in the Latin American Context," paper prepared
ADR Conference, November 16-17, Monterrey, Mexico, 1995; Ibrahim
Shihata, "Judicial Reform: Issues addressed in World Bank Projects," paper
prepared for Inter-American Development Bank Conference, Oct. 19-20,
Montevideo, Uruguay, 1995.
cxciii Walter Horn, "A Guide to Allocating Resources between
Mediation and Adjudication," 15 Justice Sys. J. 824 (1992).
cxciv Since 1993, the mediation center has not received many cases
involving domestic violence. Interview with Dr. Elena Heighten and Dr.
Gladys Alvarez of Libra Foundation, June 5, 1994.
cxcv If a mediation program accepts domestic violence cases, it must
assure the safety of the victim-party. This may mean court-ordered restraining
orders if such measures are available in the country's legal system or
psychological or other counseling services.
cxcvi In Ecuador, the Labor Law requires that collective labor
disputes be submitted to the Conciliation and Arbitration Tribunal within the
Ministry of Labor. Ecuador: Judicial Sector Assessment, Supra note 96, at
30. After these mechanisms were implemented the time for disposing of a
matter decreased from 11 1/2 years, in 1991, to 9 1/2 years in 1993. Buscaglia
and Dakolias, Delay Study, Supra note 18. Moreover, the number of cases
reaching final disposition was halved. Proyecto BID-CONAM-MTRH Study
(1994).
cxcvii Often the number of notaries is limited by law as in Ecuador
and Peru making it a virtual monopoly with high fees. In Lima and Quito,
there are 60 and 30 notaries respectively. In Mexico, high examination
standards are used as a barrier to entry.
cxcviii Venezuela, for example, mandates attorney representation
before its courts. Venezuela: Judicial Sector Assessment, Supra note 52.
Notably, one of the benefits of the previously discussed ADR systems,
especially mediation or justices of the peace, is that the need for attorney
representation is significantly reduced under such systems.
cxcixTrinidad and Tobago: Sector Report, Supra note 21.
cc Pe¤a, Supra note 16, at 24.
cci Venezuela's recently increased court fees have raised accessibility
concerns. Venezuela: Judicial Sector Assessment, Supra note 52.
ccii One argument in favor of court fees is that public resources which are
scarce should not finance transfers that occur in many commercial cases.
cciii Ecuador: Judicial Sector Assessment, Supra note 96, at 26.
cciv Legal aid programs can be classified into three legal assistance
models: the judicature model, the public salaried model and a combined
approach model. The judicature system provides affordable or gratuitous
lawyers. The areas of discussion in this type of system include the income
eligibility limits, the method of proving eligibility, the compensation of the
attorney, the availability of free legal advice in addition to court
representation. Sweden, France, Belgium, Great Britain and Germany have
such programs. Mauro Cappelletti, Bryant Garth and Nicolo Trocker, "Access
to Justice Variations and Continuity of a World-Wide Movement," 54 Revista
JurIdica de la UniversIdad de Puerto Rico 221, 228 (1985). The public
salaried model is the model used most frequently in Latin America through
public defenders programs, where a government employee provides legal
assistance. The United States, although relying in part on public defenders
and having experimented with the judicature model to a limited extend with
the Legal Services Corporation, now primarily relies on uncoordinated, ad hoc
pro bono services offered by private attorneys. For a comparison of the U.S.
and the German legal assistance systems see Heribert Hirte, "Access to the
Courts for Indigent Persons: A Comparative Analysis of the Legal Framework
in the United Kingdom, United States and Germany," 40 Int'l and
Comparative L. Quarterly 91 (1991). In Venezuela, the law mandates that
appointment of an attorney for individuals without representation; however,
the law does not provide for payment of such attorney. Therefore, the system
must, unsuccessfully, depend on the volunteer services of the legal community.
Venezuela: Judicial Sector Assessment, Supra note 52.
ccv Ecuador: Judicial Sector Assessment, Supra note 96, at 25.
ccvi Id. at 25.
ccvii Id. at 26.
ccviii Peru: Judicial Sector Assessment, Supra note 7, at 35.
ccixIn Trinidad and Tobago legal aid lawyer's fees are usually one
sixth the market rate. Trinidad and Tobago: Sector Report, Supra note 21.
ccx In Trinidad and Tobago, there were over 10,000 requests made to
the legal aid office in 1993 and only 10% were accepted due to the low
income thresholds that are in place. Id.
ccxi In Peru in 1993, approximately ninety NGOs provided legal
services. Peru: Judicial Sector Assessment, Supra note 7, at 35.
ccxii In Trinidad and Tobago second year law student must handle at
least one case in the legal aid program provided by the law school. Trinidad
and Tobago: Sector Report, Supra note 21.
ccxiii All of these countries require young lawyers to work in legal
aid offices for three years as part of their practical training. In United States,
the only two states that have apprenticeship requirements are Delaware and
Vermont.
ccxiv The small claims courts have been developed most extensively
in common law countries. Historically, the reasons behind the creation of
small claims courts have been obstacles to access, including: costs, delays,
complexity, formality and the need for legal representation. Christopher J.
Whelan, "Small Claims Courts: Heritage and Adjustment," in Small Claims
Courts: A Comparative Study 207 (ed. Christopher J. Whelan, 1990).
ccxv An amount not exceeding TT$5,000. Trinidad and Tobago:
Sector Report, Supra note 21.
ccxvi For a description of the Brazil's system with respect to small
claims see Marcos Afonso Borges, "La Justicia de Peque¤as Causas en el
Brasil," in Justicia y Sociedad 657 (1994) and for the Mexican system see
H‚ctor Molina Gonz lez, "Tribunales de M¡nima Cuant¡a," in Justicia y
Sociedad 669 (1994).
ccxvii Mauro Cappelletti and Bryant Garth, Access to Justice A
World Survey 1029 (1978).
ccxviii Some small claims courts have two different procedures for
defended and undefended cases. However, interestingly, of the countries
studied, more often than not when individuals are the claimants, the case is
more likely to be defended than when businesses are the claimants. However,
when individuals are acting as defendants, the claim is less likely to be
defended. Whelan, Supra note 210, at 214. This comparative study, however,
also found that the better-educated, better-off individual is more likely to bring
a claim, both in the United States and Australia. Id. at 218-9.
ccxix Sometimes an imbalance of power may occur in small claims
courts when large firms use the system as a debt collecting institution;
consequently, individuals should have the ability to acquire an attorney. Some
small claims have dealt with this power imbalance by simply prohibiting
businesses from using the small claims courts. Cappelletti (1993) Supra note
165. However, another commentator has argued that most courts have not
eliminated business claims in small claims courts because merely the fact that
businesses use the court does not deny consumers and individuals access that
they would otherwise not have, concluding that business claimants should be
eliminated only if they "chill" individual's claims, that is, if businesses are
using resources such that individuals are prevented from using them, or if the
easy access to small claims courts encourages business claimants to give credit
too easily. Whelan, Supra note 210, at 213.
ccxx See Gonzalo Armienta Calder¢n, "La Oralidad come Expresi¢n
Simplificadora del Proceso," in Justicia y Sociedad 743 (1994).
ccxxi There are a number of different approaches to addressing
collective or diffuse interests: the governmental approach where the
government is responsible for representing diffuse interests; the private
attorney general approach (qui tam) where individual parties are allowed to
bring action on behalf of a collective interest; and finally, the organizational
private attorney approach. In most countries, the first approach exists. It
merely provides no other mechanisms for representing collective or diffusive
interests because the government is viewed as responsible for such interests.
The organizational private attorney approach has been adopted in a number of
European countries and exists in Chile and Peru with respect to environmental
issues.
ccxxii There are two types of interests involved. The first is the
collective interest problem of a large number of individuals suffering the same
injury or legal problem, for example, an airline crash. The other interest is
that of diffuse interest organizations, for example, the desire of an
environmentalist or consumer group to bring an action on behalf of a
generalized public good.
ccxxiii The class action is a device that has not been adopted with any
frequency in civil law countries.
ccxxiv Pursuant this procedural mechanism, associations have
standing to sue on behalf of an interest after they have been registered as
interested organizations. Environmental, women's, children's, handicapped
and veteran's organizations, for example, have been certified to represent their
particular interests in actions brought before the court system. Cappelletti
(1993), Supra note 165, at 286. For a detailed discussion of Italian collective
action mechanisms see Douglas L. Parker, "Standing to Litigate 'Abstract
Social Interests' in the United States and Italy: Reexamining 'Injury in Fact'"
(forthcoming in Columbia University Law Review). For a discussion of the
advantages and the disadvantages of these two mechanisms see Cappelletti
(1985), Supra note 200, at 238-9. Brazil, for example has begun
experimenting with the collective action mechanisms in a recent consumer
protection code adopted in 1990. Cappelletti (1993), Supra note 165, at 56.
ccxxv According to one aspect of public choice theory, individuals
will group together when a number of factors coalesce: they have a symmetry
of interests, the group is relatively small in size, their interests are
concentrated interests; and the group can easily be subject to sanction. It is
difficult for large groups with diffuse interests, such as consumer groups, to
successfully change public policies because, given their size, they can obtain
only marginal gains because the benefits are spread across the entire
population; information costs are high; and they cannot sanction free-riders.
Thus, pursuant to public choice theory, class action and collective action
mechanisms attempt to decrease some of the costs to the large, diffuse
interests. See generally Mancur Olson, The Logic of Collective Action (1971).
ccxxvi In Venezuela, for example, judges establish their own hours;
therefore, no uniformity or predictability exists with respect to hours of
operation. Venezuela: Judicial Sector Assessment, Supra note 52. Notably,
one of the benefits of the previously discussed justice of peace system is the
possibility to resolve disputes in non-working hours, and thus, increasing
access.
ccxxvii The Bolivian Constitution requires that translators be
provided. Bolivian Constit. Art. 116. For the United States federal court
system, a statute was passed concerning access to interpreters. See generally
Carlos A. Astiz, "A Comment on the Judicial Interpretation of the Federal
Court Interpreters Act," 14 The Justice Sys. J. 103-9 (1990).
ccxxviii Ecuador: Judicial Sector Assessment, Supra note 96, at 25.
ccxxix According to the Ley Organica, justices of peace in Uruguay
are required to be fluent in the indigenous languages used in a justice's
jurisdiction, in addition to Spanish fluency. This requirement, however, may
be waived. Ley Organica, Art. 183.
ccxxx George Psacharopoulos, Samuel Morley, Ariel Fiszbein,
Haeduck Lee and Bill Wood, "La Pobreza y la Distribuci¢n de los ingresos en
Am‚rica Latina: Historia del Decenio de 1980," (June, 1993). Burki and
Edwards have also found that the poverty increases of the recent years have
fallen the heaviest on Latin American women. According to their study, the
second most significant factor for determining poverty is sex. Moreover,
single women heads of households, who are likely to be below the poverty line,
are now a common phenomenon. Burki and Edwards, Supra note 1, at 7-8.
ccxxxi Currently, 73 percent of the illiterate population in Peru is
female. Additionally, while females in the Province of Lima have on average
9.6 years of schooling, in one rural area (Apur¡mac), girls have an average of
1.9 years of schooling. Informe Nacional Sobre la Mujer 71 (Marzo, 1995).
ccxxxii Pe¤a, Supra note 16, at 27.
ccxxxiii Moreover, this percentage is even higher for caseloads in the
legal aid offices. In Peru, for example, the most frequently processed claim in
the Lima Bar Association legal aid clinics was alimony (50%) followed by
other domestic issues. Peru: Judicial Sector Assessment, Supra note 7, at 35.
ccxxxiv In Chile, 76.7 percent of the family cases are resolved by out-
of-court settlements. Pe¤a, Supra note 16, at 42.
ccxxxv As noted above, spouses may not bring legal actions in courts
because of intra-family immunity laws.
ccxxxvi See e.g., Pe¤a, Supra note 16, at 42-8.
ccxxxvii Lynn Hecht Schafran, "Credibility in the Courts: Why is there a
Gender Gap?" 34 Judges J. 5 (1995).
ccxxxviii See Gender Discrimination in the Labor Market and the Role of the
Law: Experiences in Six Latin American Countries, World Bank (1994).
ccxxxix This has been labeled the representative method for improving the
situation of any social group. If the social group is included within the ranks
of the decision-making apparatus, the social group's condition will necessarily
change. See Elaine Martin, "The Representative Role of Women Judges," 22
Judicature 166 (1993) (analyzing whether women judges have changed the
content of judicial decisions). In Venezuela, which has a much higher
percentage of women among its judicial ranks than other Latin American
Countries, 29 percent of appeal court judges are women; 50 percent of first
instance judges; and 71 percent of public defenders. Venezuela: Judicial
Sector Assessment, Supra note 53. Notably, the participation of women in the
judiciary is increasing although it is still minimal. In Buenos Aires in 1983,
women constituted 11.20 percent of the judiciary, in 1985 20.10 percent and in
1992 25.64 percent. Peru currently has one woman on its Supreme Court.
ccxl During the preparation of the proposed Bank financed Judicial Reform
Project in Peru, the issue of the judiciary's monopoly is being addressed
through competitive ADR which is intended to improve the service of the
judiciary. Interview with Mr. Geoffrey Sheperd December 10, 1995.
ccxli One Peruvian commentator has argued for implementing the
court-annexed system in Peru modeled after the system used in Quebec.
"Poder Judicial: sin vendas ni balanzas," Advocatus (No. 3, 1991).
ccxlii Additionally, accurate statistics must be kept in order to
evaluate the success of the pilot programs.
ccxliii This fund would be offered in addition to legal aid offices and
public defenders and could be managed by the ministry of justice, the courts,
legal aid offices, etc.
ccxliv In a legal clinic for poor women in Ecuador, almost all of the
cases involved family law and violence issues. Women, Law and Development
-- Action for Change 62 (ed. Margaret A. Schuler, 1990).
ccxlv In what became known as the New Jersey Supreme Court Task
Force on Women in the Courts, a number of states conducted state surveys
about judicial bias in the U.S. court system. The survey provided significant
data to convince a previously disbelieving legal profession that the U.S. system
suffered from gender bias. Women, Supra note 245, at 107. A "gender bias
task force collects local data on the existence and effect of gender bias in the
court system, develops recommendations to eliminate gender bias, and uses
this information to educate the judiciary." Marilyn Loftus, Lynn Hecht
Schafran and Norma Wikler, "Established a Gender Bias Task Force," 4 Law
and Inequality 103 (1986). According to these authors, in order to establish a
successful gender bias task force there are three prerequisites: i) a core group
of men and women made up of judges, lawyers, educators and the public
concerned about the issue, ii) preparation with the legal communities to
generate interest, and iii) significant expertise, personnel and money resources
must be available. Id. 104.
ccxlvi Terza Sadek and Bastos Arantes, Supra note 13, at 10.
ccxlvii Ecuador: Judicial Sector Assessment, Supra note 96, at 21.
In Central University in Ecuador, for example, 6,000 students are enrolled, but
only 400 complete their coursework and only 80 complete the thesis
requirement to obtain a degree.
ccxlviii Argentina, however, has recently established a National
Committee on Legal Education Standards, Summer 1994.
ccxlix National Commission, Supra note 37, at 1447. Peru has a
public service requirement under the Servicio Graduado de Derecho
(SECIGRA).
ccl For an in depth, if dated, description of the Chilean legal
education system see Steven Lowenstein, Lawyers, Legal Education and
Development: An Examination of the Process of Reform in Chile (1970).
ccli At the Central University in Ecuador, out of a total of 120
professors only 20 are full-time. The average salary of a professor is 200,000
Sucres (approximately $100) per month. Ecuador: Judicial Sector
Assessment, Supra note 96, at 21. In Argentina, at the University of Buenos
Aires, a lecturer who teaches about four hours a week receives approximately
$100 dollars. In Peru, private university salaries are about US$600-1,000 per
month while public university salaries are about one tenth this amount. Peru:
Judicial Sector Assessment, Supra note 7, at 39.
cclii Neil Gold, Argentina: The State of Legal Education, (1994).
ccliii The program is designed to improve the critical thinking of
students. The UBA program is to be affiliated with several foreign law
schools.
ccliv A survey of attorneys in five mandatory CLE states in the
United States found that 79-91 percent felt that attendance in such courses
improved their professional competence. However, no empirical data is
available to prove the value of CLE to the legal profession or the public. Mary
Francis Edwards, "The Nature and Value of CLE," Paper Presented to the
International Bar Association, Melbourne, Australia, Oct. 12, 1994.
cclv Fifty-nine percent of malpractice actions result from
administrative errors and poor client relations. Id.
cclvi For example, programs could include courses on judicial
conduct, ethics, fairness, court management, decision-making, judicial stress,
case settlement skills, family proceedings and specialty areas of the law: child
abuse, complex commercial litigation, AIDS, domestic violence, gender bias,
intellectual property, and environmental protection. Li, Supra note 24, at 17.
cclvii Id. at 47.
cclviii France established a national judicial school in 1970 that also
receives foreign judges and nonjudges. National Commission, Supra note 37,
at 1440. French students receive payment during their studies if they pledge to
work in government service for 10 years. Id. at 1441. Training is also
available at the National Judicial College in Reno, Nevada.
cclix Australia, Canada, and England have judicial schools that are
national public entities with independent boards of directors usually chaired by
the chief justice or a delegate. Bangladesh and Sri Lanka also use the peer
group model but for pre-service training. Li, Supra note 24, at 48.
cclx Id. at 18.
cclxi Id. at 18.
cclxii In those Latin American countries where judicial schools do not
exist, it is not uncommon for judges to mention the need for training.
Ecuador: Judicial Sector Assessment, Supra note 96, at 22.
cclxiii Constit. of Brazil, Art. 93. Terza Sadek and Bastos Arantes,
Supra note 13, at 11.
cclxiv World Bank, Panama: Judicial Sector Assessment (work in
progress).
cclxv In the provinces, however, the schools are under the judiciary.
cclxvi The school will have a board of directors consisting of a
member of the supreme court, the court of appeals, the president of the
national association of judges, an academic who is a representative of the
president of the Republic, the bar association and the law schools.
cclxvii In the United States, 35 states have mandatory judicial
education requirements for judges. France requires four months of continued
training at a rate of two weeks per year for the first eight years of tenure.
cclxviii Bolivia: Judicial Reform SAR, Supra note 7.
cclxix In such a capacity, judges can "Identify for other judges what
aspects are of judicial concern and deflect efforts by experts representing social
interest groups to lobby judges to support their causes." Li, Supra note 24, at
46.
cclxx Through media individuals in the province of Tucuman in
Argentina have mobilized to file claims on behalf of all the users of different
agencies in effect creating a form of class action.
cclxxi Such methods are being used not only in the United States but
also in Bangladesh and Sri Lanka. Id. at 46.
cclxxii One reason for the civil law distinction is that being a judge is
part of a career service path; and therefore, many new lawyers are young,
usually between the ages of 23-25 years old, and have little experience while
in common law countries, new judges usually have between 10-15 years of
experience. Id. at 17-18.
cclxxiii Id. at 49.
cclxxiv National Commission, Supra note 37, at 1411.
cclxxv USAID, Supra note 107, at 39. It should be noted, however,
that this will increase demands for judicial services, and consequently,
increase pressure on judicial access. Pe¤a, Supra note 16, at 26.
cclxxvi Estudio de Opini¢n, Supra note 12. Through the media
individuals in the province of Tucuman in Argentina have mobilized to file
claims on behalf of all the users of different agencies in effect creating a form
of class action.
cclxxvii For the first time, a National Committee on Legal Education
Standards (CELEP) was established by the Bank through an Institutional
Development Fund Grant to improve the quality of legal education and
lawyer's professional training. The Committee is composed of law school
deans, judges, representatives of the bar and NGOs.
cclxxviii Li, Supra note 24, at 17.
cclxxix Id. at 50.
cclxxx Similarly, special problems exist when the official registry of
new and revised laws is not readily available. In these instances, the possibility
of decisions being made without the knowledge of new laws may result in an
increased number of appeals to rectify the decision. Institutionalized training
programs will also provide assured mechanisms for dissemination of a wide-
variety of essential information.
cclxxxi In Trinidad and Tobago lawyers are rarely sanctioned.
Trinidad and Tobago: Sector Report, Supra note 21.
cclxxxii Ecuador: Judicial Sector Assessment, Supra note 96.
cclxxxiiiJudicial Reform in Latin America and the Caribbean, ed.
Malcolm Rowat, Waleed Malik, and Maria Dakolias, World Bank Technical
Note 280 (1995) at 106.
cclxxxiv The bar association sponsors a clinical law program where
experienced attorneys work with students on a volunteer basis.
cclxxxv The Legal Department is providing support to the region on a
number of these projects.
cclxxxvi Buscaglia and Dakolias, Judicial Reform, Supra note 3.
cclxxxvii The Inter-American Development Bank has also recently
begun to finance judicial reform projects in the region. Although the only
projects to date are in Costa Rica, Colombia and Nicaragua there are several
projects under preparation in El Salvador, Honduras and Paraguay. There are
also Grants for alternative dispute resolution mechanisms that have been
approved for Colombia and Peru.
cclxxxviii USAID has been involved in administration of justice
projects for many years especially in the Latin American and Caribbean
Region and has provided much needed expertise and lessons learned to the
other institutions now involved in this area. Most recently, many of the
USAID projects were not renewed due to budget cuts and therefore it has
relied on and assisted other agencies to continue the work it had begun.
cclxxxix This includes technical assistance projects in Bolivia, Chile,
Guatemala, Panama, Paraguay, and Venezuela. Other projects are planned in
Brazil, Colombia, Honduras, Mexico, and Nicaragua.
ccxc Taking into account that a number of structural aspects of
independence may be beyond the scope of any Bank project, focus should be
on the administrative and organizational aspects of independence.
ccxci Buscaglia and Dakolias, Judicial Reform, Supra note 3.
ccxcii Buscaglia and Dakolias, Judicial Reform, Supra note 3.
ccxciii See generally James M. Buchanan and Gordon Tullock, The
Calculus of Consent-Logical Foundation of Constitutional Democracy (1962);
William Niskanen, Bureaucracy and Representative Government (1971);
Douglas North, Structure and Change in Economic History (1981).
ccxciv Id. at 18.
ccxcv USAID, Supra note 107, at 22.
ccxcvi Id. at 24.
ccxcvii It appears that it will not be created due to a lack of
consensus.
ccxcviii The supreme court delegated authority to the committee to
prepare the judicial reform strategy and the project financed by the World
Bank.
ccxcix Among these elements is gender. Such an approach coincides
with the Bank's policy on gender issues. More specifically, the Bank's policy
consists of a clear integration of gender-related objectives with overall project
objectives, with gender issues being mainstreamed through regular lending.
This can encourage constructive dialogue with the Borrower and strengthen
the Borrower's commitment to gender issues. In fact, in Ecuador, the
discussion lead to the inclusion of several important project components.
World Bank, "Gender Issues in Bank Lending: An Overview, June 30, 1994,"
Report No. 13246.
ccc It is important that courts choose pilot projects that they are
interested in since this is an important element for success. Thus, focus on
pilot projects is also conducive to demand driven fund projects. In Bolivia and
Ecuador, such funds have been successfully encouraging courts to identify
their needs and interests.
ccci Buscaglia and Dakolias, Delay Study, Supra note 19.
cccii In the 1960s and 1970s, a significant amount of international
development activity, funded by USAID and the Ford Foundation, focused on
reforming legal education in Latin American countries. The different
programs had varying amounts of success and/or failure. The Costa Rican
project included support for research activities by the Law Faculty's Agrarian
Law Project and scholarships for foreign study at American and European
Universities. Currently, a project to set up post-graduate specialization is being
sponsored in Costa Rica. In Colombia, the project provIded methodology
seminars; U.S. law professors taught in Colombia; Colombian law students
received foreign scholarships; and the library was updated. In Brazil, the
Center for Studies and Research in the Teaching of Law was created to
implement the legal education reform project. The center provided
postgraduate legal courses, revised teaching materials and encouraged
professor/student interaction. Additional legal education programs were also
established in Chile and Peru. For a critical analysis of these programs, see
James A. Gardner, Legal Imperialism: American Lawyers and Foreign AId in
Latin America (1980). Gardner argues that the participating American
lawyers were untrained and ethnocentric, therefore, making it essential to
design programs for individual country's educational needs with qualified
professionals.
ccciii David M. Trubek, "Law and Development: What We Know
And What We Do Not Know," Paper prepared for a conference of Chinese and
American Legal Scholars East-West Center, Hawaii May 29-June 2, 1989.
ccciv Id.
cccv United Nations' Basic Principles on the Independence of the
Judiciary. UN Doc. A/CONF. 121/22, ch. 1 D.2 (1985).
cccvi National Commission, Supra note 38 at 1462.
cccvii Id.
iii