Judicial Reform in Latin America: Where We Got It Right and

Where We Didn’tLinn Hammergren

World Bank

April 18, 2006

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?

#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?

# 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?

#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.

#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

#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

# 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.

#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

#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

#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

#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

# 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

#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?

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

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

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?

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

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