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.
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.