Judicial Reform in Latin America: Where We Got It Right and Where We Didn’t

1. Judicial Reform in Latin America: Where We Got It Right and Where We Didn’t Linn Hammergren World Bank April 18, 2006

2. Over 20 Years of Reform • Testing ground for many approaches adopted elsewhere • Expectation gap – progress yes, but is it enough? • Gradual evolution of focus and methods – from ending human rights abuses with small interventions to…… • Like 7 years ago, “we know how to do a lot of things: we still are not sure why we are doing them.” • A problem of strategy, knowledge management, incentives of all parties • No longer one program, but at least 5 – inconsistent goals, ad hoc tactics, parallel tracks • Proliferation without consolidation – time for some culling?

3. #1: The Beginnings: Improving Criminal Justice • Aftermath of authoritarian period, targeting human rights abuses and later, crime • Code driven model of local origin – not donor imposed • Has changed sector’s organization and procedures and reduced some abuses • But questions about overall benefits, greater efficiency and efficacy • Conflict between 2 goals?

4. # 1: Weaknesses in Approach • Excessive faith in the law, axiomatic principles • Inversion of means and ends; imposing model not producing outcomes • Laws not drafted intelligently or for context • Insufficient preparation • Too court centered – neglects other actors • Overly optimistic about costs • The bottom line: can a new law improve justice with the usual suspects?

5. #2: Efficiency and Delay Reduction • Donor bias and result of own experience • Defines delay as the principal, universal problem and sees cause in large workload • Combination of revised courtroom procedures and automation • The strategy was to revise procedures first and automate later, but first step often omitted • Has improved some user services, given better picture of case flow, and sometimes increased outputs, especially in “pilot” courts.

6. #2 Efficiency strategy: shortcomings • Courts are still struggling to keep up • Problem: increase in demand defeats any progress in processing • Problem: failure to change processes sufficiently or to get buy-in on objective • Problem: workload often not that great and automation not used for obvious end – create performance statistics • Problem: less delay than inconclusiveness –cases that get stuck in the system • Problem: where delays originate in legal procedures, actions of parties, courtroom rationalization won’t fix

7. #2a: Improving Economic Impacts • New objective and justification • The WB mantra – a well functioning judicial system …… • Efficiency approach plus laws, special courts, and ADR. • Emphasis on civil cases and civil procedures as those most affecting business • Also bankruptcy, other special laws

8. # 2a: Results: Shortcomings • Not much indication that has improved processing of cases or business environment • Problem – for contract enforcement is ability to collect, not time to judgment • Problem – business environment may be more affected by crime, administrative abuses • Problem – real need for special courts? • Problem – investors don’t prioritize sector; businesses often are major abusers of civil court weaknesses; ambivalent support for change.

9. #3: Institutional Strengthening • Independence, neutrality, professionalism • Budgets, career management, governance • Addressed real problems • Budgets, salaries, and resources increased • New selection systems, more merit, less politics • New organizations (councils) for governance – the MOJ is out, but was never a major player in LAC • Where all aspects applied, different behaviors

10. #3 Institutional strengthening: the bottom line • Budgets higher but not efficiently managed or used to improve user services • “Merit” selection may not target the right qualities and still allows manipulation • Governance – changing forms does not change non-management culture. • More independence, less accountability • Inattention to corruption, work habits; judicial corporativism

11. #4 Access: the Non-Strategy • Usual interpretation – get the poor to court; respect their special needs • Has produced enormous variety of means to get people to court or alternative services • Has increased knowledge about barriers • Some programs show concrete improvements for users • Popular with citizens and can improve courts’ image

12. #4 Access: the Problems • Access and new “legal empowerment” are not analytic concepts – can’t be measured except by summing contributing factors • Access to what? Courts, justice, other values? Objectives and larger benefits? • Lacks empirical evidence of larger pro-poor impacts except at individual, anecdotal level • More is always better? W/o definition of concept, larger objectives it is impossible to say. • Real and opportunity costs. Is this the best way of solving problems of the poor? • Conflicts with efficiency, juridical security goals

13. # 5: Courts as Political Powers • Independence in a different sense – as check on other branches of government • Donors endorse in principle, but have done little • More constitutional rights, judicial review, access mechanisms, adoption of public interest litigation • In many countries courts have become more important in giving access to rights, curbing government abuses, and shaping public policy

14. #5 Political Power: the Problems • Rights rich constitutions pose threat to public budget – which will be enforced and for whom? • Inter-branch battles and anti-judicial reactions (Arg, Par, Ven, Peru, Brazil) • Inegalitarian approach? Judicial asistencialismo? • Can unreformed courts be trusted? • Can executive be trusted to respect independence? New motive for interference? • Judicialization of politics and constitutionalization of justice?

15. General lessons: the positive side • Increased knowledge of sector can improve programs and impacts • Budgets, salaries, equipment, training, buildings, laws can fix discrete problems • A new law can jump start change process • New appointment/career systems reduce political interference and attract better judges • Greater attention to sector can induce change, but also produce bad ratings (expectation gap) • Automation allows tracking of individual outputs and can improve system planning • Pro-poor mechanisms help courts’ image

16. General lessons: the negative • Resources don’t automatically improve performance; can serve less essential ends • Change requires recognition of problem and explicit focus on improving output, the missing element • Multi-faceted change programs, not silver bullets • The devil is in the details – all training, law reform, automation is not the same • Founding beliefs about problems, causes, solutions, and impacts were often incorrect • Increasing efficiency has its limits – and multiple objectives eventually come into conflict

17. Some Flaws in the Strategy(ies) • First, is there one? The 5.5 approaches are not coordinated and a few (access) are anything but strategic. Let 100 flowers bloom, but do some culling. • Individually and collectively, the whole is often less than the sum of the parts – lost synergies, poor coordination, and pilots leading nowhere • The justifications have served us well, but has experience proved their validity? • What about the claims based only in wishful thinking? Legal empowerment?

18. Some flaws in the application • Information is there, but not used or consolidated as common knowledge base • Contradictions not recognized – parallel tracks even in “holistic” projects • Evaluation phobia – “justice can’t be measured” • Advocates not analysts – little interest in testing claims. A disciplinary bias? • The firemen’s syndrome

19. Where do we go from here? • Aim: to have the 25-year balance reflect improvements over the 15- 22-year ones • Consolidate information, build knowledge base, disseminate better, and require it be used • Distinguish what we know and where we need to know more – research agenda? • Always work from country and disciplinary knowledge – use to evaluate proposals • Shift from “capacity building” to improving output and extra-sector impacts and track both • Do not assume; test and evaluate results