The Judiciary & PMP

1. The Judiciary & PMP Mariana Sousa University of Notre Dame Prepared for IDB February 28th – March 2nd, 2005

2. Outline of the Presentation • Potential roles for the Judiciary in the PMP & its conditions • Judicial Independence & its elements • Cross-Country assessment of J.I. using 3 instruments of analysis • Implications for PMP • Examples • Limitations of Assessment Presented • Question, Comments & Suggestions

3. Potential Roles for Jud. in the PMP • Facilitator of political transactions; enforcer of inter-temporal agreements (Landes & Posner 1975). • Veto player: increase durability of policies (Tsebelis 2002). • Policy player: shape content of policies according to their own preferences. • Quality inspector: ensure effective application of other state policy reforms (e.g., privatization, fiscal, pension). • Alternative channel for societal representation regarding certain policies.

4. Conditions for Jud. to fulfill its roles • Political autonomy & no collusion with certain groups to favor outcomes. • Act in good faith & be accountable. • Rulings must be enforced; that is, they must be respected. “Responsible” Judicial Independence

5. Definition & Dimensions of “Responsible” J.I. • Horizontal Accountability: independence from private actors, partisan interests & other government branches (O’Donnell). • Societal Accountability: to avoid arbitrary action (Domingo; Hammergren). • Caveat: de jure vs. de facto J.I.

6. Elements tending to support J.I. (I) • Budgetary autonomy: amount allocated & how to allocate within the Judiciary. • Uniform, transparent, & merit-based appointment system. • Stable terms: tenure of judges, lifetime preferred, longer than governmental cycles.

7. Elements tending to support J.I. (II) • Promotion procedure based on evaluation of performance & also not purely in hands of judicial hierarchy. • Adequate salaries & retirement benefits. • Broader reach of judicial review powers. • Good administrative capacity & training.

8. Cross-country Assessment of J.I.(3 instruments of analysis) • Rules (formal or actual) regarding the before-mentioned elements of J.I. • Cross-national quantitative indicators. • Secondary Literature: reports (e.g., Popkin, Hammergren, Domingo, Dakolias) on real experience of judiciaries in LACs.

9. Budgetary Autonomy (I)

11. Budgetary Autonomy (II)

12. Appointment System

16. Judicial Terms

18. Promotion & Removal Procedure

21. Remuneration (I) Source: WB, Legal & Judicial Reform Practice Group.

22. Remuneration (II) Source: WB, Legal & Judicial Reform Practice Group.

23. Remuneration (III) Source: WB, Legal & Judicial Reform Practice Group.

24. Remuneration (IV) Source: WB, Legal & Judicial Reform Practice Group. Compression rate = ratio between highest & lowest salary

25. Judicial Review Powers

29. Administrative Capacity (I) Source: WB, Legal & Judicial Reform Practice Group.

30. Administrative Capacity (II) Source: Malone 2003.

31. Quantitative Indicators of J.I. (I)

32. Quantitative Indicators of J.I. (II) Source: Feld and Voigt (2003).

33. Literature on J.I. in LACs • J.I. in theory does not ensure J.I. in practice. • Despite reforms, there are still many challenges to J.I. • Lack of changes in values & attitudes of those in power & the general public • Reforms are not integrated; lack of attention to accountability • Independence of Jud. branch does not imply personal independence of judges.

34. Conclusions (I): General Assessment of J.I. in the Region • Budget Autonomy: • Larger budgets; stipulated in law • Still need approval from other branches • Centralized distribution of resources within the Judiciary • Courts outside major urban centers often do not receive enough resources

35. Conclusions (II): General Assessment of J.I. in the Region • Appointment: • Lower courts: more transparent & merit-based system • S.C.: still political to certain degree • Hierarchical control of lower courts by S.C. still remains in some countries • Importance of Judicial Council has increased

36. Conclusions (III): General Assessment of J.I. in the Region • Terms: • Longer • Provide judges with greater job security • Promotion & Removal Procedure: • Objective merit-based procedures can still be subject to manipulations • The basis for evaluation is highly subjective • In some countries, there is lack of notice of opportunities for promotion • In some cases, disciplinary mechanisms violate judges’ rights to due process & their indep.

37. Conclusions (IV): General Assessment of J.I. in the Region • Remuneration: • Increased salaries • In some countries, still not competitive • In some cases, remuneration has increased only at the top of the hierarchy • Administration Capacity & Training: • Increased separation of judicial & administrative tasks • Problem of efficiency • Problem of judicial education

38. Conclusions (V): General Assessment of J.I. in the Region • Judicial Constitutional Review Powers: • Done by different insitutions • In some countries, there is no “abstract” monitoring of constitutionality • Decisions are sometimes only binding for the concrete case

39. Implications for PMP • “Judicialization of Politics” • Greater importance of court rulings in both public policy & politics • Re-positioning of the Jud. in relation to other branches • Greater strategic interest in the control of appointments to the courts • Policy debate now aims at anticipating response of legal institutions • Not to the same extent throughout the region!

40. Examples • Mexico • Argentina

41. Limitations of Assessment Presented • The numeric figures are from 2000. • Difficult to find information for all of the countries for all elements of J.I. • Difficult to organize countries into ideal types according to the degree of judicialization of politics

42. Questions, Comments & Suggestions • How to summarize all of the information for the entire region? • How broadly to consider the role of the Judiciary in PMP?