The Unfinished Transition to Democracy in Latin America (Latin American Studies)

The Unfinished Transition to Democracy in Latin America

Latin American Studies Social Sciences and Law David Mares, General Editor

Observing our Hermanos de Armas U.S. Military Attachés in Guatemala, Cuba, and Bolivia, 1950–1964 Robert O. Kirkland Land Privatization in Mexico Urbanization, Formation of Regions, and Globalization in Ejidos María Teresa Vázquez Castillo The Politics of the Internet in Third World Development Challenges in Contrasting Regimes with Case Studies of Costa Rica and Cuba Bert Hoffmann Contesting the Iron Fist Advocacy Networks and Police Violence in Democratic Argentina and Chile Claudio A. Fuentes Latin America’s Neo-Reformation Religion’s Influence on Contemporary Politics Eric Patterson Insurgency, Authoritarianism, and Drug Trafficking in Mexico’s “Democratization” José Luis Velasco The Politics of Social Policy Change in Chile and Uruguay Retrenchment Versus Maintenance, 1973–1998 Rossana Castiglioni

An Industrial Geography of Cocaine Christian M. Allen State and Business Groups in Mexico The Role of Informal Institutions in the Process of Industrialization, 1936–1984 Arnulfo Valdivia-Machuca Left in Transformation Uruguayan Exiles and the Latin American Human Rights Networks, 1967–1984 Vania Markarian International Relations in Latin America Peace and Security in the Southern Cone Andrea Oelsner The Politics of Moral Sin Abortion and Divorce in Spain, Chile and Argentina Merike Blofield Political Change and Environmental Policymaking in Mexico Jordi Díez Female Prostitution in Costa Rica Historical Perspectives, 1880–1930 Anne Hayes The Unfinished Transition to Democracy in Latin America Juan Carlos Calleros

The Unfinished Transition to Democracy in Latin America

Juan Carlos Calleros

New York  London

First published 2009 by Routledge 270 Madison Ave, New York, NY 10016   Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN   This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s  collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Routledge is an imprint of the Taylor & Francis Group, an informa business     © 2009 Taylor & Francis All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.   Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.   Library of Congress Cataloging in Publication Data Calleros, Juan Carlos, 1967– The unfinished transition to democracy in Latin America / by Juan Carlos Calleros. p. cm. -- (Latin American studies. Social sciences and law) Includes bibliographical references and index. 1.  Justice, Administration of--Latin America.  2.  Judicial power--Latin America.  3.  Courts--Latin America.  4.  Rule of law--Latin America.  5.  Law reform--Latin America.  I.  Title.   KG495.C35 2008 347.8--dc22 2008020287 I SBN 0-203-88836-7 Master e-book ISBN

ISBN10: 0-415-95763-X (hbk) ISBN10: 0-203-88836-7 (ebk)   ISBN13: 978-0-415-95763-2 (hbk) ISBN13: 978-0-203-88836-0 (ebk)

To my wife, Adriana. To my daughter, Andrea.

Contents

List of Figures List of Tables Abbreviations Acknowledgments

ix xi xiii xv

Introduction

1

1 Democracy and the Rule of Law: A Theoretical Framework

9

2 The (Un)Rule of Law in Latin America: A Weak Arena of Democratic Consolidation

32

3 Judicial Reforms in Latin America: Towards More Independent, Efficient and Impartial Judiciaries in the Region

48

4 Assessing Judicial Independence in Latin America During the 1990s

69

5 The Judiciary’s Capacity to Check the Executive in Latin America During the 1990s

87

6 The Judiciary’s Capacity to Bring the Military to Account in Latin America

114

7 Judicial Systems’ Ability to Protect Human Rights in the New Democracies of Latin America

136

8 Corruption, Inefficiency and Violence in Latin American Court Systems

159

viii  Contents 9 Conclusions

180

Appendix 1 Appendix 2 Notes Bibliography Index

189 193 195 213 225

Figures

3.1

Reform of the State.

51

3.2

Trust in the judicial power.

53

4.1

Actual judicial budget as percentage of the national budget in Latin America 1990–2000.

81

5.1

Direction of horizontal accountability.

91

5.2

Executive capacity/incapacity to influence the judiciary in the 1990s.

100

6.1a Military expenditure.

126

6.1b Military expenditure.

128

6.1c Military expenditure in LA region.

129

7.1

Cases declared admissible by the IACHR, 1998–2003.

150

8.1

Corruption perception index, 1998–1999.

161

8.2

Overcrowding in prison systems.

173

8.3

Percentage of untried prisoners.

174

9.1

Relative empowerment of the branches of government.

181

9.2

Situation of the rule of law during the 1990s.

186

Tables

3.1

Concurrence of Democratic Transition and Judicial Reforms in Latin America

58

3.2

Security of Tenure for Supreme Court Justices

60

3.3

Formal Appointment Procedure for SC Justices

61

3.4

Number of Supreme Court Justices and Existence of Constitutional Tribunals

62

3.5

Judicial Council Formation in Latin America

63

3.6

Case Backlog in Supreme Court and the Judicial System

67

4.1

Classifications of Judiciaries in the 1970s

74

4.2

Formal and Actual Appointment Procedures for SC Justices

77

4.3

Indicators of Financial Strength in Latin American Judicial Systems

82

5.1

Judicial Review Powers Before and After Judicial Reforms

97

5.2

The Capacity of the Executive to Influence the Judiciary During the 1990s

99

5.3

Politically Relevant Cases Decided by Latin American Supreme Courts 110

6.1

Situation of Transitional Justice in South America (Until 2000) 124

6.2

Relations Between Military Courts and Civilian Courts in Mexico and South America

133

Number of Cases Denounced by Core Human Rights Organizations Between 1989–1994

138

Constitutional Articles Protecting Individual Rights in Latin America, 1997

140

7.1 7.2

xii  Tables 7.3

Individual Petitions Declared Admissible by the Inter American Commission of Human Rights Plus Friendly Settlements, 149 1998–2003

7.4

Most Common Human Rights Violations During the 1990s

156

8.1

Judges per 100,000 Inhabitants, 1993–2000

170

8.2

Clearance Rate of Civil Cases Backlog

171

8.3

Total Pending Cases per Judicial Personnel

172

8.4

Data on Prison Systems in Latin America

175

9.1

Situation of the Rule of Law in Latin America During the 1990s

185

Abbreviations

AD Acción Democrática (Venezuelan Social Democrat party). ADR Alternative Dispute Resolution mecanisms (arbitration, mediation, friendly settlements). AI Amnesty International. COPEI Comité de Organización Política Electoral Independiente (Venezuelan Social Christian Party). EPR Ejército Popular Revolucionario (Marxist Mexican guerrilla). ERPI Ejercito Revolucionario Popular Independiente (Marxist Mexican guerrilla) EZLN Ejército Zapatista de Liberación Nacional (neo-Zapatist Mexican guerrilla). IACHR Inter-American Commission of Human Rights. IDB Inter-American Development Bank. M-19 Movement 19th of September (Colombian ex-guerrilla). MNR Movimiento Nacional Revolucionario (Bolivian political party). PAN Partido Acción Nacional (Rightist Mexican party). PBSD Partido Brasileiro Social Demócrata (Brazilian party). PRD Partido de la Revolución Democrática (Leftist Mexican party). PRI Partido Revolucionario Institucional (Mexican ruling party 1929–2000). TI Transparency International. UNCHR United Nations Commission on Human Rights. UNDP United Nations Development Program. USAID United States Agency for International Development.

Acknowledgments

I want to thank the Department of Government of the University of Essex for have provided an outstanding research environment, while the Library and Computing Services facilitated the acquisition of key materials and publications. In particular, my gratitude goes to Carol Parmeter, Jacqueline Pells and Linda Day, for their support and always prompt and kind attention. My most dedicated appreciation to Conacyt (Mexican National Council of Science and Technology) for having sponsored my research studies. Thanks to Dr. Todd Landman and Dr. Joseph Foweraker, for all the patience, expertise and guidance they provided me throughout the elaboration of this research. I value the comments received from Dr. David Sanders on chapters 4 and 5, and the interest that Dr. Christian Anglade awakened on me about horizontal accountability issues in Latin American politics. I want to thank USAID for have sent a hard copy of the document Guidance for the Promotion of Independence of the Judiciary, and to ILANUD (Centro Internacional para Estudios Penitenciarios) for their fast response to requests of information about Latin American penal systems. My appreciation also to Clara Sandoval and Louise Blackman for their time and comments on chapter 7, and thanks to every one who attended my presentations in the Ph.D. Colloquium of the Government Department, at the University of Essex, and contributed with suggestions and fresh insights about the themes included in this book. Thanks to my editor, Ben Holtzman, for all his support in order to publish this research. I also appreciate very much the comments and suggestions advanced by the series editor, Dr. David Mares, of the Department of Political Science, University of California, San Diego, to the manuscript. The experience of living and studying in Colchester, U.K., could have been very hard without the extraordinary support that my family and I received from our friends Mark and Kim Newcombe, John and Rose Chivers, Robert and Margaret Fisher (R.I.P.), Jessie and Edmundo Hernández,

xvi  Acknowledgments Chris and Vicky Nolan, Colin and Karen Toohey, Mitch and Lina, Ricardo and Tania Corral, Sarah Jones and Rupa Rajapajze. Thank you all for have always been so generous, supportive and understanding. Mexico City, December 2007.

Introduction

Starting in the 1980s and continuing through the 1990s, Latin American societies experienced a wave of transitions from authoritarian regimes to democratic civilian governments. Latin America lived the effects of the so called “third wave” of democratization, with transitions to competitive democracy in Ecuador (1979), Peru (1980), Bolivia (1982), Argentina (1983), Uruguay (1984), Brazil (1985), Paraguay (1989) and Chile (1990) (Huntington 1991, Wiarda 1990). In the light of this wave of transitions, the democratic landscape should have been highly promising for the region. However, there are still worries about the quality of the resulting regimes: shallow electoral democracies where governments may be elected by relatively free and fair elections, but in practice show a limited capacity to deliver essential political goods such as the protection of civil and political rights, self restraint authority and most of all, the consistent enforcement of the rule of law (Anglade 1994; Diamond 1999: 10; Foweraker, Landman and Harvey 2003: 90–1; Panizza 1995). One of the main concerns relating to Latin American politics is that new democracies appear to be unconsolidated. They are definitely missing some of the central components of more advanced liberal democracies. These should generate social confidence about the durability of the regime and its capacity for good governance. There should also be routine support for the idea of democracy as “the only game in town” (Linz and Stepan 1996: 5). Instead, the regions’ political actors and electorates have lived through a post-transition “disenchantment” phase and support for democracy fluctuates—in fact, support for democracy stands at just 48%, compared to 53% in Eastern Europe and 78% in Europe (Latinobarometer 2001, New Democracies Barometer 2000, Eurobarometer 1999). After the failure of authoritarian, reactionary, socialist and populist regimes, and lacking any other political model, democracy is the de fault option in Latin America (Whitehead 1992). For most observers, however, these societies seem to be trapped in a limbo of illiberal democracies—also called pseudo democracies, partial democracies, low intensity democracies, empty democracies, hybrid regimes or delegative democracies—which are vulnerable particularly to the

2  The Unfinished Transition to Democracy in Latin America insidious process of democratic decay (Foweraker, Landman and Harvey 43–4; Prillaman 2000). As this transition process in Latin America appears to be incomplete, the central questions underlying this book are the following: What is still missing in Latin American political regimes for them to be considered consolidated liberal democracies? Why, excepting Costa Rica, have Latin American societies been historically unable to create the conditions for a sustained democratic rule of law? Is it possible for electoral democracies to survive without the fundamental components of a consolidated political system; such as civil and political rights protection mechanisms, effective checks and balances among powers, as well as complete and unchallenged civilian control over the military? Political scientists have looked for answers to these questions by analyzing the institutional design of the political systems, the political party system, the relations between the executive and the legislature, excessive centralization of power in the presidential system, the political culture and political participation (Diamond 1999; Diamond and Plattner 1996; Diamond et al 1997; Linz and Stepan 1996, Pridham 1995, Tulchin and Romero 1995). In this book, the search for answers to these questions is directed towards exploring the situation of the rule of law, focusing particularly on a political analysis of the judicial branch. The task is to analyze the judicial branches in Latin America during the 1990s, from a political perspective. This study is thus an insight into the political evolution of the judiciary—a political actor that is often overlooked—and its capacity to contribute to the process of democratic consolidation in Latin America. Review of the Literature The literature directly addressing the connection between democratic consolidation and the rule of law, or indirectly pointing to aspects of this relationship, is divided into a number of different points of view. The rule of law is just one of six arenas of democratic consolidation outlined by Linz and Stepan (1996), along with those of Stateness (or the basic definition of the demos, free of disintegration tendencies for example), a vibrant Civil Society, the maturity of the Political Society, the democratic loyalty of the State Bureaucracy and the collateral support from the Economic Society (democracy requires a socially and politically regulated market). Linz and Stepan consider that democratic consolidation results from the interaction of all six arenas. For them, this is a political situation in which democracy becomes ‘the only game in town’. So, democratic consolidation is achieved when no significant political groups attempt to overthrow the democratic regime; when the overwhelming majority of the population advocates the parameters of democratic procedures even in the face of severe political or economic crisis; and when all the actors in the polity are habituated to the

Introduction  3 fact that any political conflict is resolved according to the established norms, it being ineffective and costly to act otherwise (Linz and Stepan 1996: 5). In the former scheme the rule of law underlies the constitutional requirements of democratic consolidation, but there is no further exploration of the link between democracy and the rule of law. One perspective that does take the political and judicial institutions that are linked to enduring democratic systems into account is the path followed by Held 1987, Elster and Slagstad 1998, Brugger 1999 and Rowat et al 1995. From this point of view, the consolidation of democracy is to be obtained by means of setting up the proper institutions of a democratic regime. This means particularly the effective division of power among the Executive, the Legislature and the Judiciary. Authors especially concerned with the role of the judiciary within a democratic system are Anglade 1994, Domingo 1994, Früling 1998, Prillaman 2000, Schor 2002, Stotzky 1993 and Ungar 2002. An emphasis on the self-restraining commitment of the liberal democratic regime is found in Schedler et al 1999 and is addressed by O’Donnell 1994, in his definition of horizontal accountability: “the effective institutional or democratic capacity of every branch of government and the citizens to curb anti constitutional laws or actions carried out by any other government agency.” Another perspective for analyzing the connection between democratic consolidation and the rule of law is that which focuses on the human rights scores of particular political systems, as proof of their real commitment to deliver the political goods expected from liberal democracies. This is the scope of Gastil 1991, Inkeles 1991, Beetham 1999, Donnelly 1999, Forsythe 2000, Foweraker and Landman 1997 and the main assumption behind the Freedom House and Charles Humana scores. From this perspective, a consolidated democracy is only so if it consistently reaches the highest democratic scores by means of being a truly rights protective regime. A variant of this approach is the focus on minority rights, as proof that all the citizenry is included in the decision-making process. This is the core aspect of a high quality democracy according to Vanderschueren and Oviedo 1995 and Mendez et al 1999, where the authors analyze the bias of the political and judicial systems against the minorities and the poor, to unveil exclusionary regimes or oligarchies hiding behind electoral democratic façades. From this point of view, a consolidated democracy must be, above all, a rights protective system, able to include minorities and the poor in the political process by means of assuring their fair participation and, most of all, equality in law. The above mentioned set of ideas is linked to another more comprehensive perspective for analyzing the democratic consolidation process: one that considers the rule of law as the cornerstone for liberal democracy. Christiano 1996, Dworkin 1977, Rawls 1972, Raz 1977 and Shapiro 1992, even consider the rule of law as the foundation of any political system, and certainly for a liberal democratic one. This approach is challenged—from a Marxist perspective—by Wolff et al 1971 and Collins 1982. For these authors, the emphasis on the rule of law is a conservative attempt to reproduce the

4  The Unfinished Transition to Democracy in Latin America exploitative conditions found within the capitalist system. However, the fact that a rights protective regime has proved to be over time supported by the working class, gives sufficient credit to the liberal democratic ideal as being the most substantive and attainable model of consolidation for new democracies. This is the approach followed by Holden 1993 and Zakaria 1997, and the essence of the defence of the democratic rule of law—which is possible only within a liberal democracy—in the works of Hayek 1960, Dworkin 1977 and Rawls 1972. For the latter in particular, there is an assumption that the liberal democratic ideal is a near-to-just regime. This is due to its commitment to the protection of rights for every one and the institutional flexibility to include minority rights, and some degree of consideration towards the poor in the day-to-day decision-making process. In sum, it is possible to identify three main streams of thought in the discussion on the link between democracy and the rule of law. One stream represents the republican tradition, defending the concepts of constitutionalism, checks and balances, horizontal accountability and institutional design. The second stream focuses on the liberal tradition of civil and political rights protection, access to court systems for all citizens and the adoption of minority rights. Finally, the third stream considers the rule of law as the glue holding together the three compounding traditions of the liberal democratic ideal (O’Donnell 1999: 32), in such a way that democratic, liberal and republican traditions merge and become complementary rather than exclusionary to each other. Thus, the conditions for democratic consolidation are enhanced by means of the rule of law, not in its conservative form, but as a cornerstone of the liberal democratic model: a rule of law constructed by democratic means which is applied evenly by impartial courts. Purpose, Argument and Method The main purpose of this study is to highlight the relationship between political development and the strength of the judicial branch as the most important institution for enforcing the rule of law. This role of the judicial branch is essentially political, as a key institution to check unconstitutional or arbitrary acts of any other agencies of the political system; but also, the judicial system has a practical function closer to the citizen’s point of view: to provide decisions in matters of law and order while protecting individual rights at the same time. In this sense, an independent, impartial and efficient judiciary is required as the very foundation of the rule of law, in order to counterbalance unconstitutional acts by the executive or any other political actors (i.e. legislatures and the military), and to protect individual rights as is supposed to happen in a liberal democratic regime. The main argument of this book is that an effective rule of law is an essential part of a consolidated democracy. This is due to frequent interactions between the republican, democratic and liberal components of a

Introduction  5 liberal democracy. In Latin American regimes, the flaws in the rule of law can be seen in the relative independence of the judicial branch—despite the judicial reforms that have accompanied the transition process during the 1990s—, its inability to check the executive, the legislature or the military forces of the region, the constant gap between rights-in-principle and rightsin-practice, and a pervasive bias against indigenous populations and the poor within the judicial system. All this is aggravated by the widespread corruption and secular opacity found in the judicial process. It can be expected that, unless further and more profound judicial reforms are adopted, the consolidation of quality democracies in the region will be hindered by the uneven and discriminatory application of the law. In order to explore the relationship between democracy and the rule of law in Latin America, this study compares twelve countries of the region: Argentina, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, Mexico, Paraguay, Peru, Venezuela and Uruguay. The sample includes the largest countries in the region plus Costa Rica, for many, the most advanced liberal democracy in Latin America where the rule of law has been regularly observed since 1949. The research follows a Most Similar System Design that takes into account the Spanish and Portuguese cultural heritage, similar legal traditions, political institutions, judicial systems and concurrence in transitions to democracy for most cases (Landman 2000). In fact, the dozen countries are now considered to be electoral democracies, since transitions to democracy happened throughout the 1980s in Argentina, Bolivia, Brazil, Chile, Ecuador, Paraguay and Peru; Costa Rica, Colombia and Venezuela have been electoral democracies for more than four decades, and Peru suffered an authoritarian reversal in 1992 followed by another transition to democracy in 2000. For its part, Mexico initiated a slow transition in 1988, which was accelerated in 1997 and finally completed in 2000.1 So, even the Mexican case provides interesting material and data on the relationship between the rule of law and the democratization process. Another coincidence among these Latin American countries is that, with the exception of Costa Rica, all the countries in the sample implemented judicial reforms during the 1990s, allegedly as a result of the liberal democratic nature of the new regimes. Some of them even incorporated the judicial reforms into brand new constitutions—in Brazil, Colombia, Paraguay, Peru and Venezuela. One of the most important aspects of these reforms has been the enhanced provisions for greater independence of the judiciary from undue influences from the executive. However, the results of these reforms are not as satisfactory as they should be. This is because the judiciary did not obtain real political power to check other branches of government or the military, nor the authority to enhance the protection of the individual rights or to offer a more widespread access to justice and genuine impartiality of the court system (Ungar 2002). Despite the establishment of Constitutional Courts in seven countries2 and the conferring (in principle) of judicial review powers to all of the supreme courts considered here—even when

6  The Unfinished Transition to Democracy in Latin America some progress has been registered in this aspect, particularly in Colombia (Popkin 2004, 12–14)—, in practice few judiciaries in the region are perceived by both the public and scholars as a reliable or consistent check on other branches of government. To assess the linkages between the rule of law and democracy in the region, it is necessary to look more closely at the organization, structuring of (or restructuring whenever the case) and powers that make up the judiciary. Even if this exercise could be extended to local or state judiciaries, particularly in the federal countries (Argentina, Brazil, Mexico and Venezuela), this task would be beyond the scope of this work. Here we will address mainly the national supreme courts along with constitutional tribunals or constitutional courts wherever they are in place. Crucial aspects for exploring the extent of the real power that the judicial branch can exert within the political system are a) the independence that the judiciary has in practice, b) the capacity of the judicial branch to check the executive and other actors on the political scene, and c) the ability of the court system to protect civil and political rights. It is also crucial to assess whether or not aggravating practices—such as court corruption, inefficiencies, difficult access to courts, circumvention of laws, defective prison systems and violence against judges and prosecutors—can curtail the judiciary’s authority as impartial guardian of the Constitution and reliable protector of individual rights. According to international standards (see Appendix 1), the degree of judicial independence seen in practice will be considered a function of: a) the tenure and immovability of judges, b) the appointments procedure, c) the financial independence of the judiciary and d) the freedom from undue influences over judicial decisions.3 For its part, a judiciary will be considered to be an effective “horizontal accountability agency” if it demonstrates its power to check the executive—or an executive controlled Congress—and if it rejects interference from other agencies of government, including the military. The rule of law cannot be considered as complete unless the whole legal and judicial system is reasonably able to protect civil and political rights and to combat aggravating practices such as corruption, inefficiencies and violence against judicial functionaries. In assessing how well the 12 countries conform to these aspects, apart from consulting published reports on the different judicial systems by scholars, international and regional agencies and the human rights community, the level of public trust in the judicial sector will be a broad but revealing indicator about how well the judicial sector is perceived to perform in enforcing the rule of law. Structure of the Book The book comprises eight chapters. The first chapter, “Democracy and the Rule of Law: A Theoretical Framework”, explores the linkages between the

Introduction  7 concepts of rule of law and liberal democracy. The second chapter, “The (Un)Rule of Law in Latin America: A Weak Arena of Democratic Consolidation” shows that severe faults in the judicial process are still inconsistent with the due process of law despite a long standing Latin American judicial tradition and despite large areas where the application of the law (e.g. electoral and commercial domains) is consistently applied. The third chapter, “Judicial Reforms in Latin America: Towards More Independent, Efficient and Impartial Judiciaries in the Region” examines the depth of judicial reforms adopted in eleven out of the twelve cases (only Costa Rica has not implemented a judicial reform). The fourth chapter, “Assessing Judicial Independence in Latin America During the 1990s” evaluates the degree of political independence granted to the judiciaries of the region compared to international standards; especially those included in the instrument Basic Principles on the Independence of the Judiciary, signed by all the countries in the sample in 1985 (see Appendix 1). The fifth and sixth chapters analyze the capacity of the judicial branch to check the executive and the military. In these two chapters, it is shown that the judiciary is not the real balance of power as it is supposed to be in the liberal democratic model; instead, a Latin American pattern, in which the judiciary is a weak partner, has emerged in the new democracies, with the sole exception of Costa Rica. The seventh chapter analyzes the entire judicial system’s capacity to protect civil and political rights, revealing significant limitations even in the post transition period. Finally, the eighth chapter: “Corruption, Inefficiency and Violence in Latin American Court Systems” is a review of common practices that do not comply with the rule of law. This chapter will also include tendencies to circumvent the law and facts and figures on overcrowded and inadequate prison systems. In this way, the book intends to reinforce the view that the uneven enforcement of the rule of law is a severe fault line in Latin American electoral democracies (Agüero and Stark 1998). It is so, because the lack of a strong judiciary tends to produce unaccountable and thus arbitrary authorities. The limited access of the poor to the judicial systems is aggravated by practices such as corruption in courts, circumvention of laws and inhumane detention conditions, but also by the vulnerability of judges and judicial functionaries to violence and threats. With a picture of weak judicial power and disarray in the court systems, this work further argues that transitions to democracy in Latin America are unfinished, in spite of the electoral advances all over the region, precisely because of the incomplete construction of the rule of law.

1 Democracy and the Rule of Law A Theoretical Framework

The main problem of a new democracy is how to foster the process of democratic consolidation once the transition phase has been completed. A consolidated democratic regime is not only about holding regular and more or less free elections, as there is a substantial difference between “electoral democracy” and “liberal democracy.” These two terms describe rather different political systems as examples of the first kind show remarkably higher levels of political violence, lawlessness and political corruption than the latter (Diamond 1999:10). To qualify as a liberal democracy a polity must fulfil the requirements of a polyarchy (as defined by Dahl 1971)1 plus the effective and regular enforcement of the rule of law. Most of the new democracies of the third wave only comply with the electoral dimension of democracy, showing a significant gap between rights-in-principle and rights-in-practice, as illiberal versions of democracy that are quite distant from the liberal democratic ideal (Foweraker and Landman 1997: xx; Zakaria 1997; O’Donnell 1996; Schor 2002:1). Juan Linz and Alfred Stepan have identified six “arenas”2 of democratic consolidation: stateness, civil society, political society, the rule of law, state bureaucracy and economic society. For them, democratic consolidation is the final phase of the democratization process—after the political liberalization phase and the transition phase—, as a political situation in which all relevant political actors recognize that “democracy has become the only game in town.” Only when all the aforementioned six arenas are consolidated, “democracy becomes routinized and deeply internalized in societal, institutional and even psychological life, as well as in calculations for achieving success.” (Linz and Stepan 1996: 5–6) In this chapter, I will argue that of the six arenas defined by Linz and Stepan, the cornerstone is the rule of law for both deepening and consolidating democracy. The rule of law defined as “[the] constitutional limits on the kind of powers that governments may legitimately exercise, as well as on the extent of those governmental powers,” (Shapiro 1992:1) refers to the idea of limited government or the self-restraining state which is the proper government behavior in a democratic polity. The rule of law also entails the question of stateness—proposed as an arena of its own by Linz and Stepan—, because

10  The Unfinished Transition to Democracy in Latin America the law exerts jurisdiction within a certain territory, people and government, thus requiring the previous existence and clear definition of the organs of the state. The rule of law arena also provides the norms that all arenas are ruled by, while establishing accountability processes and oversight procedures for the arenas of state bureaucracy and the political society. The main argument therefore is that the rule of law is concomitant to an effective liberal democracy, precisely because it brings republican checks to public powers, while providing mechanisms for the protection of individual rights. However, it has been argued that sometimes non-democratic regimes show a systematic legal approach in their performance,3 upholding in this way the principle of legality, which is associated with the rule of law but definitively not its parallel. Also, there is a Marxist critique to the rule of law that remarks on its tendency to maintain the structural injustices pertaining to a capitalist state.4 The questions to be examined in this chapter are the following: Is there any tension between democracy and the rule of law that can prevent one from occurring without the other? Why is the rule of law so important in the process of democratic consolidation? Is the rule of law also essential for the correlated processes of economic development and republicanism? Why is an operating system of checks and balances a necessary condition to obtain a higher quality of democracy in human rights terms? And finally, how can the rule of law be seen as an agent of justice and democracy rather than an agent of structural injustice and perennial class oppression, as argued by the Marxist critique? To answer these questions I will equate the democratic rule of law as “the set of rules constructed by democratic means,” as the rule set by the majority that provides civil and political individual rights but also recognizes minority rights (Christiano 1996). In this sense, the rule of law is close to the idea of volonté general conceived by Rousseau, but also includes civil rights and minority rights as legal mechanisms to prevent the constant oppression of the many over the minorities. In this sense, democracy is required for a state of near justice, where “all social primary goods—liberty and opportunity, income and wealth, and the bases of self respect—are distributed equally unless an unequal distribution of any of all of these goods is to the advantage of the least favored.” (Rawls 1972: 303, 363) However, even in such a case, the Marxist critique of the rule of law—relating to its tendency to reinforce uneven economic development within a capitalist society—remains valid for most cases, unless when referring to the advanced liberal democratic welfare states (Donnelly 1999:631). Tensions between Democracy and the Rule of Law In philosophical terms, there is a tension between democracy and the rule of law. This is because the former is an expression of the positive sense

Democracy and the Rule of Law  11 of liberty, while the latter sets the limits for the negative sense of liberty. According to Isaiah Berlin, the negative sense of liberty answers the question: “what is the arena within which the subject is or should be left to do or be what he is able to do or be, without the interference by other persons?” As every man and every woman requires a minimum area of personal freedom, it follows that a frontier must be drawn between the scope of private life and that of public authority. In this case, “the liberty of some must depend on the restraint of others.” Political liberty, then, is “simply the arena within which a man can act unobstructed by others,” and the most evident forms of such obstacles in every society are, among many others, the laws in force. However, Berlin reminds us that “laws are instruments for freedom, cause freedom is not freedom to do what is irrational, or stupid or wrong.” (Berlin 1969:122–48) In this sense, liberty means “liberty from” because men and women are not completely free while living in society, given that they must respect the liberty of others. Then, no one can impose his or her will on others, unless he or she heads a dictatorship where all other people’s liberty is suppressed. On the contrary, wherever there is a system of law, it establishes the rules for everyone by means of setting specific limits on the liberty of every person in society. The rule of law is, in this sense, the very foundation of the negative sense of liberty, because only by means of the law, can everyone achieve the maximum amount of possible freedom while living in society, i.e. nobody must murder, or stale from, or kidnap another person, because the laws prohibit such acts. And the reason for this is because it would reduce in absolute terms the amount of liberty that everyone can obtain in that society. Thus, when the rule of law exists, a negative sense of liberty appears (Berlin 1969: 148). On the other hand, the positive sense of liberty answers the question: “what or who is the source of control or interference that can determine someone to do, or be, this rather than that?” In this sense, liberty is not “freedom from” but “freedom to.” Then, in the positive sense, liberty derives from the wish to be a subject, not an object. When there are no obstacles, the positive sense of liberty appears when a person acts by exercising his or her freedom, and then liberty is only restricted when “in a field without obstacles, a vacuum in which nothing obstructs [the self], but the notion of self direction or self control.” (Berlin 1969: 122,131,144) According to Berlin, there is no logical connection between democracy and liberty, unless when referring to the positive sense of the concept. The question “who governs?” is logically distinct from the question “how far does the government interfere with me?” Also, the democratic policy­making process, even if it ought to be conducted within the limits of the rule of law, requires the agency of the elite and the electorate: the elite will and power, and political participation of the citizenry. The absence of obstacles to the personal liberty of citizens is not sufficient for a democratic government to exist, but a positive sense of liberty is implied when a political party

12  The Unfinished Transition to Democracy in Latin America proposes a set of policies, and when society or sectors of society freely participate and demonstrate for or against such policies.5 A tension is always present between the rule of law (negative liberty) and democracy (requiring positive liberty), because it is not enough to have democratic rights, they must also be exercised. In a nutshell, “the rule of law was meant to curb state authority, while democracy was meant to mobilize society in the exercise of state authority.” (Sejersted 1998: 132) However, this tension does not imply a contradiction. The very primary requirement for a democracy to exist is when the liberties of expression (belief, opinion, discussion, speech, publication, assembly, demonstration and petition), the right to vote, the right to be elected for public office, and the right to compete for support and for voters, are respected. It also requires a fair and egalitarian electoral law, the public should be able to access alternative sources of information, and political parties should not be banned from participating in elections if they fulfil the electoral rules (Dahl 1971: 3; Diamond 1999: 10). Democracy requires a specific set of rules (the negative sense of liberty or the absence of obstacles), previous to the exercise of the democratic virtues (the positive sense of liberty). The rule of law as a generic concept—understood as the set of rules constructed by any means, democratic or not—thus precedes democracy in philosophical terms, but also in historical trends, at least for the emergence of the liberal democracies of Western Europe, where the rule of law existed long before democracy. The liberal tradition set the foundations for a democratic rule of law—understood as the set of rules constructed by democratic means—, opposed to the former monarchical rule of law. But in so doing, liberalism had to deal with another tension: that existent between the will of the majority and the protection of individual liberties. Tensions between Democracy and Liberalism In the fight against absolutism, the liberal tradition sought to restrict the powers of the state and to define a uniquely private sphere independent of state action. The liberal democratic ideal—with its philosophical foundations on the works of Locke and Montesquieu, first, and James Madison, J.S. Mill and Jeremiah Bentham, afterwards—concurred historically with the appearance of representative democratic procedures: government officials chosen by free and competitive elections, who embodied popular sovereignty but observed institutional limits to power that emerged from the natural law and subsequent legal restraints. In the liberal concept, democratic procedures are the most suitable means by which to preserve the most important end: freedom (Held 1987: 48; Holden 1993: 191). The French revolution and the Universal Declaration of Rights of Men and Citizens were the first historical events that shattered the Ancient

Democracy and the Rule of Law  13 Regime and allowed the emergence of the democratic rule of law. The duet of rule of law and democratic government was adopted in the first place by the American Constitution of 1783, while it was more slowly adopted in England by the reformist approach through the Bill of Reforms passed in 1830–32, 1867–8 and the Reform act of 1885. In Western Europe, despite some reversals to the monarchical system (i.e. France during the nineteenth century), the rule of law survived in the shape of the Constitutional Monarchy, as a more self-restrained state that the former absolutist regimes (Thompson 1981). Liberals preferred the democratic method of regular elections for the realization of liberties. Nevertheless, tensions between liberalism and democracy appeared from time to time; for example, an “excess of democracy” was denounced by the federalists in the United States, because the national government under the Articles of the Confederation was extremely weak, and called for the creation of a stronger government under a new Constitution. The result was the Philadelphia Convention of 1787 and the drafting of the Federalist Constitution (Barnum 1993: 5; Tyndall and Shi 1996). In this case, and at many other historical times, when tensions between liberalism and democracy have occurred, liberals have tended to sacrifice democracy in favour of liberalism. As stated by Holden, “Liberal Democracy can be seen as a system specifically designed to ensure liberty—even, if necessary, at the cost of some diminution of democracy.” (Holden 1993: 187) According to Holden, liberal democracy is a political system in which a) all people, positively or negatively, make and are entitled to make, basic determining decisions on important matters of public policy, and b) the legitimate sphere of public authority is limited. Then, the model of liberal democracy is an amalgam of different, and to some extent conflicting ideas of democracy, liberty, equality, autonomy and justice. However, the liberal tradition rests on the fulfilment of the majority law to ensure the limits of the state’s power over its citizens. The tension between democracy and liberalism is thus solved to the extent that laws created in a democratic way preserve the greatest degree of liberty for everyone (Holden 1993: 17, 43). John Rawls considers democracy as “the form of government to which entirely free, equal and rational individuals would agree.” For him, a democratic ruling system would permit the realization of the principles of liberty that, ideally, are to be elected in contractual terms from the very beginning. In an hypothetical situation—called the “original position”—all participants meet to make the rules of that society, but suddenly they have a “veil of ignorance” in respect to their particular place in society, class position, fortune, intelligence, strength, psychology, economic or political situation, level of culture or generation. In consequence, “participants do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations.” (Rawls 1972: 136–7)

14  The Unfinished Transition to Democracy in Latin America In this case, the participants would agree on the following two principles of justice: 1. “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. 2. “Social and economic inequalities are to be arranged so that they are both: a) “to the greatest benefit of the least advantaged, and b) “Attached to offices and positions open to all under conditions of fair equality and opportunity.” (Rawls 1972: 302) From this starting point, all participants would continue to adopt a constitutional convention, political forms of governance and the basic rights of citizens. They will produce more and more laws suitable to them in particular. But in order to do so they must know the relevant facts about their society, such as the number of people that live in their country, the geographical conditions they face, the wealth and available resources as a country. This limited information results in a “partial removal of the veil of ignorance,” although they continue to ignore their particular position in society. As all unfair legislation towards women or minorities is to be avoided (because nobody knows for sure if it is their role in society or not), the principles of justice define, according to Rawls, a workable political conception: constitutional democracy (Rawls 1972: 195–6). Rawls accepts that there is no other way to manage a democratic regime, but through a system of representation and majority rule. In practice, a representative democratic regime is the political means by which to construct a majority rule, where “the parties accept the risks of suffering the defects of one another’s knowledge and sense of justice in order to gain the advantages of an effective legislative procedure.” Laws are to be approved by majority, and of course, majority rule does not necessarily mean just laws for everyone, especially the minorities. In this case, only the duty of civility prevents further injustice from appearing, as this duty asks citizens to accept the defects of institutions and also to observe some restraint in taking advantage of them. Nevertheless, there is still missing a logical connection between democracy and justice. The only philosophical linkage between these concepts is the following assumption: that a state of near-justice requires a democratic regime, because it is the most likely political system to fulfil the two principles of justice (Rawls 1972: 355–363). The tension between democracy and liberty still remains. Not every democracy can achieve in practice “the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.” Minorities are clearly the most disadvantaged groups in the majority construction of laws. However, it is also true that the principle of legality helps to fill the gap between majority rule and minority rights. It acts as an agreement by

Democracy and the Rule of Law  15 rational persons to establish for themselves the judicial mechanisms needed to assure the greatest equal liberty, by means of the due process of law (Rawls 1972: 239). The rule of law appears, then, as the only possibility to translate principles of equal liberties into practice for everyone in society within a liberal system. The tension is relieved by the principle of legality to some extent, because the risk of the “tyranny of the majority” is minimized by the requirement of the due process of law in every individual case. A façade of democracy appears when there is a gap between rights-in-principle and rights-in-practice, but this will be the object of analysis of the following chapter. Now we should turn our attention to the tensions between republicanism and liberalism, in the specific domain of the rule of law. Tensions between Liberalism and Republicanism Within a liberal democracy, the perils of excessive liberalism are corrected by means of the rule of law, according to John Rawls. However, a tension remains between liberalism and republicanism, because the excesses of representative democracy mean that a government can become unaccountable once in office unless proper checks and balances are established in the political system. There is a triad of tensions appearing in existent democracies between traditions of democracy, liberalism and republicanism (O’Donnell 1999: 2). By the republican component, O’Donnell means: “[B]asically, the idea that the discharge of public duties is an ennobling activity that demands careful subjection to the law and devoted service to the public interest, even at the expense of sacrificing the private interest of the officials.” (O’Donnell 1999: 31) O’Donnell convincingly argues that the three traditions that converge in the present ideal of liberal democracy have different emphasis on rights and obligations, and the institutional mechanisms that enshrine them. Democratic tradition basically guarantees the right to participate in the decisions of the demos; Liberalism attaches defensive rights to individuals situated in the private sphere; and Republicanism attaches severe obligations to individuals placed in the public sphere: “All citizens are equally entitled to participate in the formation of collective decisions under the existing institutional framework, a democratic statement to which it is added the republican injunction that no one, including those who govern, should be above the law, and the liberal caution that certain freedoms and guarantees should not be infringed.” (O’Donnell 1999:33) The tension implicit in this picture of converging ideas, is the one that appears, in practice, between liberalism and republicanism. The main risks

16  The Unfinished Transition to Democracy in Latin America to a liberal democratic polity, without measures to correct them, are the corruption of officials and the menace of plutocracy. Political corruption is the main target of republicanism, because the ideal of this tradition is a public service directed towards the higher interests of the Republic.6 However, the only way to correct these ills advised by the ancient republican tradition is the moral personal restraint of governors. In this respect, the liberal tradition (Montesquieu and Hamilton in particular) proposed institutional counterbalances between powers: or the “mutual frustration” system between the Executive, the Legislative and the Judiciary. This is recognized as the system of checks and balances, or the “accountability dimension of democracy.” (Karl 1990:2) Nevertheless, there is another concept of accountability: that faced by politicians at every election. The electorate will decide whether or not to vote again for the ruling party or for the opposition, in a consequence known as the vertical accountability of democracies. Sometimes it is difficult to assess this behaviour of the electorate, as voters are not only evaluating the past performance of their governors, but are also choosing their government for future years. Nevertheless, O’Donnell points out that in established democracies, the platform of parties are good predictors of their actions in government, and in this case, it is possible for the citizenry to evaluate the past and to make a choice for the future through the single act of voting. In new democracies, this kind of predictability is almost lacking, since parties frequently adopt popular electoral platforms that are betrayed or forgotten once in office (O’Donnell 1999: 30). In order to distinguish this kind of accountability from the restraining idea of the system of checks and balances, O’Donnell prefers to call it “horizontal accountability,” by which he means: “The existence of state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful.” (O’Donnell 1999:38) This concept implies two meanings. “Answerability,” as the obligation of public officials to inform about and to explain what they are doing; and enforcement, when applying sanctions to power holders who have violated their public duties. Correlated terms to horizontal accountability are: surveillance, monitoring, oversight, control, checks, restraint, public exposure and punishment of unlawful actions by other public agencies and branches in government. Corruption of officials is, by these means, deterred and potentially punished. In practice, political corruption is common in democracies, old and new, but the enforcement of corruption control mechanisms is more systematic in consolidated ones rather than in new ones (Schedler 1999:14).

Democracy and the Rule of Law  17 The other risk facing democracies is the plutocratic menace, or the ruling by the rich through i.e. increasingly multinational powers. The tension between liberalism and republicanism is evident when oligarchies or neoplutocrats can bypass the due process of law, or when they can press for modifications of specific laws that act against their interests. This is a clear risk if multinationals force democracies to change some rules or if they deter the adoption of fiscal rules, for example. In new democracies, the existence of local oligarchies has prevented for many years the adoption of minority rights, as well as agrarian and tax reforms, as is the case in many Latin American countries (Anglade 1994: 245–6; Hirst and Thompson 2000: 49–58). When dealing with the judicial system, powerful multinationals and the rich—along with corrupt officials and judges—impersonate the constant tension between liberalism and republicanism within a democracy. This is because in the absence of impartial courts the interests that tend to prevail are not public but private. The due process of law is the correction proposed for this contradiction, either to deter improper behavior by officials and plutocrats, or to punish it. In order to do so, O’Donnell suggests that, apart from the classical division of powers and the system of checks and balances, watchdogs, along with journalistic reports, can reinforce this dimension of horizontal accountability (O’Donnell 1999: 43). Philippe Schmitter, for his part, claims that non-state actors are crucial, not just supportive, in assuring horizontal accountability. In any event, the tension between liberalism and republicanism is solved by horizontal accountability mechanisms enforcing the rule of law. Actually, the tensions between liberalism, democracy and republicanism are solved by the action of an effective judicial system, capable of enforcing the rule of law. An independent, strong and efficient judicial system is a key political institution with the potential to ensure that a liberal democracy functions properly as an almost fair society. Separation of Powers and the System of Checks and Balances The theory of the separation of powers and the balancing of these powers against each other first appeared in the writings of John Locke and Montesquieu.7 Even if both liberal philosophers disagreed over how a government was to be divided—Locke considered a “federative” power rather than a judicial branch—, the common idea was that different functions relating to the making of laws, their execution and their application to criminal matters should be made by distinct organs of the state.8 The classic theory of the separation of powers, then, invoked the need for different organs to guarantee a fair configuration of the law: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because

18  The Unfinished Transition to Democracy in Latin America apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. “Again, there is no liberty, if the judiciary power be no separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression (. . .) “(Montesquieu. The Spirit of the Laws, Eleventh Book) (Ch. VI) The influence of both Locke and Montesquieu regarding the separation of powers “may be read at large in the bills of rights of the American and French constitutions.” (Sabine 1973:514) The sole division of powers was not sufficient, though, for the makers of the American Constitution. The first constitution of the United States, in 1783, was considered impractical by the American political elite because it was “too democratic.” The Confederation was simply too loose to be governed effectively, as the experience of the first president showed, and a new constitution was discussed in the Philadelphia Convention, drafted by James Madison and defended by the federalist champions Alexander Hamilton, Madison and John Jay, under the collective pseudonym Publius. The Federalist Papers appeared in the form of articles in New York journals through 1787–8, as an exposure of the newly proposed American Constitution, while it was in the process of being ratified by the states of the Confederation. In order to avoid the so called democratic excesses of the first Constitution, the Federalist Papers argued extensively about the need for checks and balances, as necessary mechanisms for a representative republic featuring a presidential and federal system (Tindall and Shi 1996).9 “But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place (. . .) If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls of government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” (Madison, Paper # 51)

Democracy and the Rule of Law  19 Such “auxiliary precautions” are precisely the mechanisms for restraining the excess of power by means of checks and balances. This system follows the rule that “ambition must be made to counteract ambition,” so each branch participates in the function primarily exercised by another (i.e. presidential veto to legislation, or judicial review of the approved laws) (Przeworski, Stokes and Manin 1999: 20). The result has been considered a system of “mutual frustration” among the executive, legislative and judicial branches, which has allowed for the existence of more than 200 years of American presidential democracy (Tindall and Shi 1996). The makers of the American Constitution provided, then, the model of presidential democracy—the most relevant for new democracies with presidential systems, such as the Latin American ones10—in which the functions of the three branches of government are divided as follows: the legislative power is to be in charge of the law-making process—assuming representative democratic composition and adequate deliberation—, the executive power is the executor of the representatives’ legal mandates, while the judiciary invigilates the correct application of laws by the executive, and the correct making of laws by the legislature. In particular, the judiciary is given the function of “guardian of the constitution,” with sufficient knowledge and integrity to apply its judgment for defending the will of the people, declared in the Constitution, from unconstitutional acts proceeding from the legislative body or from the executive branch (Hamilton, Paper # 78). However, the right to declare laws unconstitutional was not explicitly provided for in the Constitution, and despite the provision of judicial review powers to the US Supreme Court in both Acts of the Judiciary of 1789 and 1801 the Court had still to earn its powers in practice. It is commonly acknowledged that legendary chief justice, John Marshall, secured the power of judicial review to the US Supreme Court in the case Marbury v. Madison (1803), in which the judicial decision declared parts of the Judiciary Act of 1789 unconstitutional (ironically, the section that conferred judicial review powers to the judiciary). Since then, the US Supreme Court has overturned around 130 acts of Congress and has declared more than a thousand state statutes unconstitutional (Barnum 1993: 7). Judicial review powers and the doctrine of judicial sovereignty (by which the final decision about constitutional issues rests with the Court) were consolidated through key judicial decisions taken by the Marshall Court, such as Fletcher v. Peck (1810), McCulloch v. Maryland (1819), Darthmouth College v. Woodward (1819) and Cohens v. Virginia (1821). By the time the Latin American countries were becoming independent, the system of checks and balances was already firmly rooted in constitutional theory and practice in the United States (McCloskey 2000: 51). So far, we have seen that the tensions between democracy, liberalism and republicanism can be solved by the rule of law, which requires a strong, impartial and independent judiciary to enforce it. In presidential systems, the model has been provided by the power of judicial review and the doctrine of

20  The Unfinished Transition to Democracy in Latin America judicial supremacy conferred to the SC.11 Now, the analysis will turn to the very concept of the rule of law and its relationship with democratic and non democratic political regimes. The Concept of the Rule of Law The classical concept of the rule of law, originating from Plato and Aristotle, builds on the premise that being governed by the law is preferable to the rule of man. Only by this means can justice be decided by reason, not by impulse or whim. And of course written laws are preferable to unwritten ones, although in some legal systems custom is a powerful component of the law making process and administration of judicial procedures. When the tradition of common law is enforced, unwritten laws become part of the rule of law only if they are predictable, stable, known and general (Rawls 1973: 236–8; Dworkin 1977:42). Different schools of law have differing approaches to the precise definition of the rule of law. In the legal positivist school, only approved and previously publicized laws are considered part of the legal system, bound to the obedience of everyone in society, including the government itself. The most important aspect of the rule of law is, then, to assure the supremacy of laws in force as opposed to arbitrary power or newly created rules. Under this approach, the main characteristics of the rule of law are the following:

1. Laws should be known and publicized in advance. 2. All laws should be prospective, open and clear. 3. Laws should be relatively stable. 4. The making of particular laws must be guided by open, stable, clear and general rules. 5. The independence of the judiciary must be guaranteed. 6. An open and fair hearing and absence of bias must be observed. 7. The courts should have review powers to ensure conformity to the rule of law. 8. The courts should be easily accessible. 9. The discretion of crime prevention agencies should not be allowed to pervert the law (Raz 1977: 196).

However, there are other schools of Law that do not consider that the sole interpretation of written law should be the job of the judiciary. Rather, in hard cases these should be decided on a fresh piece of legislation produced by the judge. In this case, another tension with democracy might arise if the judge imposes his or her interpretation of the law in opposition to the majority sense of justice. This tension, however, is solved firstly by the appellation process to the higher courts, and secondly when judges, in collegiate deliberation, focus on the spirit of the law by means of privileging

Democracy and the Rule of Law  21 arguments of principle rather than arguments of policy in a judicial decision (Dworkin 1977: 294). For the protection of individual rights, the most important principle to be observed is the egalitarian one: “[Rights are taken seriously, when] the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves.” (Dworkin 1977: 199). Dworkin also considers that if the government does not take rights seriously, it does not take law seriously either. In any event, all schools of Law agree that the rule of law is essential to provide effective legal equality. Further requirements of the rule of law are the following: 1. No extralegal commands are obligatory. 2. Actions by government and officials are subject to general and public rules. 3. Laws ought to be general in statement. 4. Similar cases should be treated similarly. 5. There are to be fair and orderly procedures. 6. If it is impossible to carry out a law, this should be accepted as a defence or mitigating circumstance (Solum 1992: 122). It is important to highlight that the concept of the rule of law must not be confused with democracy, justice, equality, human rights or human dignity. In its narrow sense, the concept means “government by law and not by men” when law means general, open and relatively stable law (Raz 1977: 197) and can be traced back to long before the modern idea of democracy. To some extent, it is possible to have an autocratic rule of law, fulfilling all the characteristics and requirements established by the legal classical or positivist approach to Law, while failing to provide effective equality in the law making process. The monarchical legal system during Absolutism, and more recently, authoritarian and totalitarian regimes, are historical examples of this phenomenon (Barros 2003:213). Non-Democratic Forms of Rule of Law Historically the rule of law has not always been constructed by democratic means. The very origin of this idea occurred centuries before the appearance of the modern concept of democracy. The most relevant case is the emergence of a rule of law in the monarchical system. Thomas Hobbes wrote the most important justification of this kind of political arrangement, in Leviathan, where the continuous and unavoidable struggle of all men against each other (state of nature) could only be solved by means of surrendering

22  The Unfinished Transition to Democracy in Latin America part of every man’s sovereignty to a superior authority: the sovereign. In his superb essay, Hobbes accepted that a sovereign might sometimes reign as a tyrant, but even here this would be preferable for society than the state of nature, where man was “the wolf of man.” However, Hobbes was not trying to justify a tyranny, but to point out that the Leviathan (as a king of an arrogant people) was the only solution. Any other different authority could be objected to (Clegg 1989: 24–28). For Hobbes, only the sovereign could have the legitimate power to dictate the law, not because of any “divine right” to rule, but for practical reasons: to avoid the state of nature. For in a state of constant war there is no industry, no culture, no navigation, no trade, no knowledge, no society “(. . .) and the life of man, solitary, poor, nasty, brutish and short.” (Leviathan, ch. XIII) Hobbes challenged the aspiration of a law above the rule of men because, he said, in the end every law requires interpretation and who interprets the rule, governs in fact. It follows that there will be always a conflict between the rule of will (the sovereign will) and the rule of law: “Even when law seems to rule, there must be somebody to interpret and apply the law, and there must be somebody who has authority to resolve conflicts over the meaning or application of the law.” (Shapiro 1992: 66) Thus, according to Hobbes, it is that person’s will that rules, and not the law. With this interpretation, the monarchical rule of law meant in fact the “Kings’ law.” This was a genuine rule of law, as all commands were general, known and performable (Shapiro 1992: 265). This rule of law was common nearly everywhere in Europe before the French Revolution, in the form of Absolutism. Guillermo O’Donnell describes this non-democratic rule of law, when analyzing the “partially concurrent term” of Rechtstaat: “Constitutional regulation of executive authority by administrative legality even if no political rights.” (O’Donnell 1999b: 307) Another example of the non-democratic rule of law has been observed in some rare examples of authoritarianism. In particular, Foweraker and Landman, while measuring the gap between rights-in-principle and rights-inpractice in authoritarian regimes, found the case of pre-transition Spain to be a sort of authoritarian rule of law. In measuring—by robust statistical analysis—the unexplained variance in rights-in-practice given a certain level of rights-in-principle, the gap values were close to zero in the case of Spain during the Franco years. After the transition, when individual and political rights were recognized in the constitution, the gap was also close to zero, in a striking case of “we mean what we say.” (Foweraker and Landman 1997:115) Some other cases are frequently quoted as being the “rule of law,” such as Chile under Pinochet. However, following Flathman’s reasoning, rule by laws that lack characteristics such as clarity, generality and prospectivity may be rule by law or ‘legality’ but does not meet the requirements of the rule of law

Democracy and the Rule of Law  23 (Flathman 1992: 303). The case of Chile under Pinochet where there was an immense gap between the rights recognized in the Constitution and the lack of protection of such rights in practice (Foweraker and Landman 1997), was an example of “authoritarian legality” rather than rule of law.12 The Rule of Law in Republicanism and Liberalism The rule of law is known as an essential component of any constitutional democracy. This is so because the rule of law ensures that the mechanisms of self restrained government will work, and legal and political equality will be guaranteed to every citizen. This means that there are two main aspects of the rule of law in a liberal democracy: the horizontal accountability dimension and the mechanisms for the protection of individual rights. In this sense, as Beetham points out, “the most individualistic feature of democracy is the articulation of the principles of popular control and political equality in a set of individual rights”. (Beetham 1999: 17) In opposition to the monarchical tradition, where the sovereign alone was entitled to set and to interpret the law, the liberal tradition states that the people is the original source of any law, and that individual rights should not be encroached upon by any power, including the state. It follows then, that the liberal concept of the rule of law is the guarantee that individual rights are to be effectively protected, both in the letter of the bill of rights and in law enforcement. The concept of citizenship, as a process of constitutional forms, political practices and social movements, by which citizens obtained a historically meaningful set of rights, appears then as central part of the liberal concept of the rule of law. Since Roman times, the republican tradition has conceptualized the citizen as a free man who is also a bearer of a set of rights. To be a citizen of Rome was to be entitled to the same egalitarian law applied throughout the Empire. Equality before the law has been a central component of this tradition, as well as the principle that nobody is above the law and, consequently, the mandate to everyone is to “obey the law.” All these aspects were captured by Roman law and have permeated the whole concept of the rule of law in Western civilization ever since. Later on, in the Florentine Republic of the thirteenth century, the concept of citizenship was once again recovered as the main legal feature of the city-state. The dominant idea was again, to apply the law on equal terms to every citizen, without regard of his fortune, status or political connections. Some other trade-­oriented cities of Medieval times included the concept of citizenship in their legal life. Venice and Genoa first, and Geneva later, all adopted the concept of citizenship in opposition to a system of monarchical law and order. In the eighteenth century, Rousseau himself was influenced by his experiences as a citizen of Geneva. The idea of citizenship was present it his thought, when he proposed substituting the monarchical law with popular sovereignty. In fact he proposed a whole

24  The Unfinished Transition to Democracy in Latin America extension of citizenry to the people: a magnificent transformation from servants to citizens, with duties and liberties as well (Holden 1993: 84–96). The citizenship theory brought together the ideals of liberty and equality, in the liberal and republican concept of the rule of law. In so doing, a full realization of citizenship became possible only through the democratic rule of law. Within a democracy, it is the rule of law where citizenship is fused with liberalism. In fact, “it is the rule of law and not democracy that protects citizenship rights, even if democracy may contribute to protect the rule of law by making the government accountable.”13 (Foweraker and Landman 1997:23) In this way, the traditions of democracy, liberalism and republicanism are fused together in one single system: liberal democracy, which contains the functional mechanisms to protect the coexistence of the three compounding traditions (O’Donnell 1999:32). In this sense: “Liberal democracy is a kind of government in which the morally and politically prior rights of citizens and the requirements of the rule of law limit the range of democratic decision making (. . .) The liberal commitment to individual rights more than the democratic commitment to popular empowerment makes contemporary liberal democracies rightsprotective. The adjective ‘liberal’ rather than the noun ‘democracy’ does most of the human rights work.” (Donnelly 1999: 620–1) An important aspect of the horizontal accountability dimension is the apparent tension between democracy and the rule of law. This is because the branch empowered to watch the constitutionality of laws—the judiciary—is by design non-democratic given the fact that it is non-elected. Judicial review is sometimes described as undemocratic based on the assumption that Supreme Court decisions overturning legislation are examples of “countermajoritarian” judicial policy making. The tension, however, is spurious because the collegiate and deliberative character of the judiciary—when truly independent from the executive and legislative branches—allows judges to correctly interpret the intention of the people’s law, as the real meaning of popular sovereignty expressed in the rule of law. In the half century or so since the invention of the public opinion poll, decisions taken by the U.S. Supreme Court, for example, have tended to follow the trends of public opinion expressed in polls (Barnum 1993: 302). Of course, this result can be found only when a reasonable degree of independence of the judicial branch is observed; otherwise the judiciary is merely a rubber stamp for either executive or legislative decisions, and thus is anti-democratic, not in its origins but in its effects. The Marxist Critique of the Rule of Law Marxism criticizes the very idea of legal equality in the capitalist mode of production, where economic and social inequalities will always be present.

Democracy and the Rule of Law  25 From the Marxist point of view, to “obey the law” means maintaining the same material inequalities as before: “The rule of law is no less authoritarian than the rule of men in premodern society; it enforces the maldistribution of wealth and power as of old, but in complicated and indirect ways (. . .) “Most of our legal system is designed to maintain the existing distribution of wealth in the society, a distribution which is based not on need but on power and resourcefulness (. . .) “[The rule of law is] a noble façade for a huge body of law which maintains the present property and power arrangements of the society.” (Zinn 1971:18–27) Marxism points out that inequalities will always be the hallmark of a capitalist society due to the inevitable uneven development that this mode of production supposes (Gilpin 1987). Either within society or among nations, uneven development is the inescapable destiny of capitalism. And the way to prevent the dispossessed from fighting for a more equal distribution of wealth is by means of ideological hegemony. The relatively coherent ensemble of representations, values and beliefs, favorable to capitalist relations of production, is internalized by individuals through the judicial-political­religious superstructure. Then, the bourgeois judicial-political ideologies (such as the Rule of Law and the theory of citizenship) present themselves as science, and their legitimacy reduces the subjected classes to a docile acceptance of their domination (Poulantzas 1973: 206–221). The Marxist critique continues: due to the “superstructure hegemony” in ideology, religion, morals and judicial procedures, individuals are unaware of the subjection that they are subject to. The rule of law is in part responsible for this alienation, according to this school of thought, and in consequence it has to be considered biased in favor of the bourgeoisie from the very outset. This critique is also directed towards representative government, elections and the whole idea of liberal democracy. This is because electors are allowed to elect only the state apparatus, a government that will preserve the status quo in order to reproduce the conditions of class exploitation. Marxism also sets out a critique of individual rights, because these rights contribute to the creation of ‘individuated individuals’, alienated and unable to create a revolution for a supposedly better socialist world. The Marxist critique of the liberal conception of the rule of law has become increasingly more sophisticated from the initial idea of an ideological superstructure that is created to support the economic structure of class domination (Collins 1982). More recent debates highlight the contrast between the predominance of the individual against the community if liberal ideas are to prevail in political and social thought. In short, this critique

26  The Unfinished Transition to Democracy in Latin America states that “deep-seated individualism destroys community values and deteriorates progressively public life.” (Mouffe 1988: 193–206) Inspired by this argument, the criticism that constitutes the core argument of the Marxist view of the rule of law is that it tends to protect the property rights of the dominant class (Mulhall and Swift 1992). However, due to the organization and collective action of workers during the twentieth century, extreme unequal distribution of wealth and income is more commonly observable in oligarchies than in liberal democracies. The Rule of the Many and Individual Rights The only way by which the capitalist state can be rights protective is by establishing a constitutional democracy and the rule of law, made up of a self-restraining state subject to written laws (or to custom law systems) while protecting universal rights in practice, not just in principle. In this respect, even if rights are universal in character, they can only be guaranteed to individuals by the judicial system. The apparent contradiction over the universal character of rights and individual guarantees for the protection of these same rights has a practical solution: in practice, universal rights granted to “the people,” “citizenry,” or “humans,” can only be assured to individuals, not to general or abstract entities. As long as the rule of law is constructed by democratic means, the tensions between liberalism, republicanism and democracy are not contradictory at all, and can coexist in a liberal democracy. This is because the rule of law upholds the political freedoms and guarantees of a polyarchy, as well as civil rights for the whole population, and establishes networks of responsibility and accountability to all agents (O’Donnell 1999b: 317). Notwithstanding, the problem of the uneven development and economic disparity of classes within capitalist systems is not solved in this way. The Marxist critique remains valid in relation to a rule of law that is mainly directed at the protection of the dominant class property rights. In essence, the Marxist critique of the rule of law stresses the tension that exists between civil and political rights and social and economic rights. All are part of internationally recognized human rights, and most are explicitly included in domestic laws. Within a true rule of law, all three sets of rights should be equally compulsory, but the liberal democratic discourse tends to privilege civil and political rights, while economic and social rights used to be best protected by some various non democratic countries, in essence the socialist ones (Donnelly 1999: 626). While analyzing the priority of rights, the ideal vision is that all rights should have the highest importance, along with cultural and minority rights. But this aim is achievable only within liberal democratic welfare states, because only in these states do robust markets and democracies operate within systematic limits set by the full range of civil, political, social,

Democracy and the Rule of Law  27 economic and cultural rights. In historical terms, only liberal democratic welfare states have shown “a balance between democratic participation, market efficiency and internationally recognized human rights” (Donnelly 1999: 630–1). As seen above, tensions between democracy, republicanism and liberalism are solved within the rule of law. This is so because the rule of law sets out clear and accessible procedures for the protection of individual rights (citizenship), guarantees the predominance of the law above all individuals, including government officials (accountability dimension) and offers non biased trials for all (no discrimination or political bias). But these tensions are resolved only within a majority rule of law. Otherwise, as Hobbes states, the prevailing law will be a particular individual’s will and not the rule of law. Those people subject to the laws and judicial procedures that have been established through liberal democratic means, would be subject to their own law, “the people’s law” opposed to the “kings’ law” (monarchical rule of law) or the “regime’s law” (authoritarian rule of law). In this sense, it is worth recalling the words of Rousseau: “To be governed by appetite alone is slavery, while obedience to a law one prescribes to oneself is freedom.”14 Majority rule is necessary in modern democracies (or polyarchies) given that individuals cannot be self-governing, and representative institutions are the only way to channel public preferences in a modern democracy. In this way, laws issued by representative legislators are the means by which the aims of citizens are realized (Christiano 1996: 208). However, individual rights are required to avoid the constant imposition of the majority will on minorities. Rights are meant to protect the citizen against the arbitrary exercise of state power. But at the same time these rights are to be protected by the state, “since the state is the only agency to which the citizen can turn when rights are violated, the state must have the authority to act as guarantor.” (Foweraker and Landman 1997: 4) The protection of individual rights is in fact the only way to solve the apparent paradox found in the liberal democratic ideal, where individuals want both to be governed and to govern the governors. Majority rule is, then, truly democratic when it is rights protective at the same time. That is why human rights are widely associated with the rule of law within a consolidated democratic regime. The Importance of the Rule of Law for a Democracy For those countries fostering democracy and civil and political rights, it is fundamental to enforce the rule of law first of all. Otherwise, the result will be freely elected governments that either do not respect or do not maintain the rule of law, allowing or resting on elite manipulation typical of patrimonialism and particular controls of patronage and political networks. As

28  The Unfinished Transition to Democracy in Latin America Foweraker and Landman remind us, the Reign of Terror in France after the revolution showed clearly that declarations are meaningless without the rule of law (Foweraker and Landman 1997: 4). On the other hand, the participation of the people in a democracy—when the rule of law is observed—is able to produce sooner or later the most appropriate compromises within a polity, if not to fully satisfy all interests, at least to acknowledge them as part of the political agenda. The majority rule of law represents the wishes of the people in a democracy. It is the sovereignty of the people that is at stake. If for any reason, the rule of law is weak, limited or non-existent, so will be the sovereignty of the people. The situation of the rule of law indicates the freedom of people within a polity, because ultimately they are obeying their own will. The opposite happens in a dictatorship, where the people obey the personal will of the leader, governor or president. While comparing the political institutions in Taiwan and Singapore, Huntington remarked: “The freedom and creativity that President Lee has introduced in Taiwan will survive him. The honesty and efficiency that Senior Minister Lee has brought to Singapore are likely to follow him to his grave.”15 (Huntington 1997: 13) When the people’s law is established, it has to be observed, prosecuted and administered in order for it to be real. Otherwise, it is merely a façade of democratic rule of law, and someone else’s law prevails. Typically, this happens in Latin America, where the rule of law is frequently replaced by oligarchies’ unwritten laws, by local caciques’ will and by political networks. In this case, individual rights are not always respected and minority rights are ignored, in favor of the oligarchies’ interests. The rule of the people is recognized in constitutions, but frequently replaced by unwritten rules in practice. Judicial Efficiency and the Rule of Law A reasonable level of efficiency in the court system is a central assumption of the rule of law. However, in most Latin American countries this assumption cannot be taken for granted. Political corruption, circumvention of legal practices, intimidation of judicial officials and inhumane or overcrowded penal systems are part of the inefficiencies commonly reported in new democracies, including Latin America. The inefficiency of courts, corruption and personal vulnerability of judges can be decisive factors that play havoc with the whole judicial process, creating undue influences and misapplication of the rule of law as a consequence. These conditions are aggravating factors that tend to work especially against marginalized groups, such as indigenous communities and the extremely poor segments of the population. The problem of the uneven application of laws biased against minorities in these new democratic systems arises when 50% of the population lives below the poverty line and 40 million indigenous people, speaking 500

Democracy and the Rule of Law  29 indigenous languages, do not have the same access to the judicial system as the middle and upper classes (Dandler 1997). The philosophical origin of minority rights can be observed in Rawls’ theory of justice, and in the assumption that a state of near justice requires a democratic society. If this is true, minority rights are established in the original position according to the second principle of justice: “Social and economic inequalities are to be arranged so that they are both, a) to the greatest benefit of the least advantaged and b) attached to offices and positions open to all under conditions of fair equality and opportunity.” (Rawls 1973: 83) This means that a democratic society must establish special rules and provisions to benefit the least advantaged (the disabled, children, women and the elderly) but this should also include the extremely poor as well as indigenous peoples, especially if the latter do not speak the language commonly used in legal procedures. Assuming that these rights are recognized in principle, i.e. in the constitution and the legal framework, it must still be ensured that they are observed in practice. The assumption that democracy has the correcting mechanisms to provide a state-of-near-justice is false if minority rights are not established in principle, or if they are not observed in practice. Democratic decay will result whenever the rule of law is replaced in practice by unwritten discriminatory rules. If in doubt, one should ask oneself—as in the Rawlsian veil of ignorance situation—: “If I were indigenous, poor, elderly, a minor, disabled or a woman in this polity, would I agree with the legal rights established to benefit these people and on the common observance of such rights in practice?” The answer to this question would be “no” in most new Latin American democracies, and this means that, according to Rawls’ theory of justice, they are far from a state-of-near-justice. In the following chapters the analysis will show that many arrangements need to be made in order to close the gap between rights-in-principle and rightsin-practice in this region. The most important issue is, precisely, the effective enforcement of the rule of law by the judicial apparatus, once the law is constructed by democratic means in the post-transition period. Conclusion The rule of law (where general, democratically constructed and relatively stable laws are applied by independent, impartial and efficient courts) is a key arena for democratic consolidation in new democracies, once that reasonably free and fair elections are held periodically as in a polyarchy. Even if the rule of law and democracy have different philosophical foundations, in modern representative democracy the rule of law is the only way to solve the

30  The Unfinished Transition to Democracy in Latin America tensions existing between liberal, democratic and republican traditions with reference to the idea of liberal democracy. The tension between the rule of law, representing the negative concept of liberty (freedom for) and democracy as the positive concept of liberty (freedom to) is, thus, an unavoidable but functional opposition, representing the two sides of the same liberal democratic “coin.” As has been analyzed in this chapter, examples of a non-democratic rule of law occurred in monarchical and authoritarian regimes, in the form of the “King’s law” of monarchical systems and the “regime law” of some authoritarian systems. However, a rule of law where the rules are constructed by democratic means is concomitant to a true democracy that enforces the “people’s law,” both in principle and in practice. The rule of law is crucial to the process of democratic consolidation precisely because the gap between rights-in-principle and rights-in-practice is indicative of a low quality democracy, or a spurious one. In this sense, electoral democracy is a necessary condition for the elaboration of laws that respect individual rights; however, electoral democracy is not a sufficient condition per se to guarantee the even enforcement of the rule of law. An independent and politically strong judicial apparatus is necessary to obtain a higher quality democracy in human rights terms, precisely because a democracy that is not rights protective in practice is a hollow democracy. The will of the people established in the constitution and the law must be treated with respect and dignity by the government. Any deviation from this mandate in practice is a betrayal of democracy, because it opposes the rule of law constructed by democratic means. As for the republican tradition, embodied in the accountability dimension of democracy, the rule of law establishes rules, procedures and punishment for dealing with unlawful acts by government officials. The judicial branch is the central institution for the horizontal accountability dimension that enables the rule of law to prevail. When truly independent from other branches of government, judicial power is able to interpret and to defend the real wish of the people as set on the constitution and the law, and in so doing, reinforces the realization of citizen rights while checking unconstitutional behavior by the executive or the legislative branches. However, even when the rule of law is constructed by the most democratic means, it can still be seen as an agent of structural injustice and perennial class oppression, as the Marxist critique points out. The essence of the Marxist critique of the intrinsic conservatism of the majority rule of law is that social and economic rights are not enforced to the same degree as civil and political rights. A life of wellbeing is not accessible to everyone in capitalist societies without a welfare system. Then, the Marxist critique about the structural conservatism of the rule of law remains valid, especially in less developed societies, where a solid liberal democratic tradition is absent, as feeble or non-existent welfare states are part of their features too.

Democracy and the Rule of Law  31 Finally, the question of individual and minority rights that are efficiently protected and observed in order to bring about an improvement in democratic quality is particularly important for Latin America. In most new democracies, the assumption that a state-of-near-justice requires a democratic regime is far from the reality of the constant marginalization of large sectors of the population, including the poor, the underprivileged and the indigenous people. If democracy is required to provide a state-of-near­-justice, then the complete enforcement of the rule of law is indeed a vital task for improving the quality of new democracies in practice. The next chapter will provide a preliminary general overview of the situation of the rule of law in Latin America during the post-transition period of the 1990s.

2 The (Un)Rule of Law in Latin America A Weak Arena of Democratic Consolidation

Despite the long tradition of constitutionalism and legality in Latin America, the new democracies of the 1990s still show widespread areas of undue process of law. The judicial anomalies affect mainly the underprivileged and the poor, but it is also quite common to find biased trials in politically relevant cases, no matter the socio economic stratum of the individuals affected, while corruption practices and political networks provide some sort of legal privileges for the benefit of the rich and the influential. These faults in the judicial system are grave enough to qualify as a situation of incompleteness of the rule of law, an undemocratic feature that prevents the will of the people from prevailing in practice in most new democracies of the region. In this chapter, I will argue that out of the six “arenas” of democratic consolidation identified by Linz and Stepan,1 the one corresponding to the rule of law is the most critical for Latin America. This is evident when a pattern of common disrespect of the liberal and republican components of the liberal democratic model emerges in every country of the region, with the exception of Costa Rica. Judiciaries are not truly independent and the judicial apparatus is unable to check other government agencies, especially the executive and the military, while individual rights and guarantees of due process are usually reported to be poorly protected. In particular, there are a number of disturbing facts: “In Colombia, judges (. . .) have become targets of coercive manipulation by drug traffickers, paramilitary groups, terrorists and even actors within the state. In Argentina, in spite of the reforms, the judicial branch has been subject to manipulation or coercion by the executive under Menem (. . .) A similar statement can be made of Peru under Fujimori. Furthermore, the blatant disregard of basic due process by special courts in Colombia and Peru and the willingness of elected leaders in countries like Brazil to countenance official brutality in the face of soaring crime rates highlight the tensions between democracy (. . .) and the rule of law.” (Diamond Et Al. 1999: 33)

The (Un)Rule of Law in Latin America  33 The questions to be considered in this chapter are: Is Latin America nurturing illiberal democracies despite the fact that during the post transition period they held genuine contested and free elections? What was the situation of the rule of law in Latin America during the 1990s? What are the factors that determine the weakness of the rule of law in these countries? Is there a complete absence of the rule of law in these countries? To what extent is this circumstance threatening the quality of the new democracies and their chances of successful consolidation? Electoral Democracy vs. Liberal Democracy in Latin America The process of democratization can be divided into three phases: liberalization, democratic transition and democratic consolidation (Landman 2000: 169). The liberalization phase includes the easing of repression and the creation of certain civil liberties within a political system.2 The transition point is recognized when more or less fair elections occur and when the electoral system makes alternation in office a realistic possibility (Wiarda 1990). Then, as has been stated by Guillermo O’Donnell among others, the second transition starts: democratic stability and consolidation. As Adrian Leftwich has put it: “(. . .) it is one thing for a democratic transition to take place; but it is altogether another matter for democracy to survive.” (Leftwich 1997: 524) In the same sense, Diamond points out that the major risk faced by all democracies, new and established, is the deterioration in the quality of democracy, “not merely through the breakdown of formal institutions but also through the more insidious processes of decay.” (Diamond 1999: 19) The democratic method for the selection of government officials was first described by Max Weber in the 1920s, and by Joseph Schumpeter in the 1940s as “that institutional arrangement for arriving at political decisions in which power is acquired by means of a competitive struggle for the people’s vote” (Schumpeter 1943: 269) and is known as the theory of competitive leadership or the institutional approach to democracy, that “distinguishes democracy from totalitarianism and authoritarianism.” (Huntington, 1989: 16) The occurrence of free and periodical elections to choose top government officers is the main feature of the democratic method, but by such means only an electoral democracy can be obtained as no attention is paid to the democratic quality of the resulting regime. However, the misperception of this model of democracy is clear: the very existence of free and periodical elections does not mean democracy, given that it can be compatible with democratic façades or poor quality democracies—a phenomenon very common in Latin America. It is a necessary condition for a democratic system to exist but not a sufficient one, as the mere occurrence of elections does not guarantee a regime “completely or almost

34  The Unfinished Transition to Democracy in Latin America completely responsive to all its citizens, who should have the same opportunities to formulate, signify and weigh preferences.” (Dahl 1971: 2) Also, the contemporary democratic theory requires the universal enfranchisement of the entire adult population, as well as the widest non discriminatory practice in the exercise of voting. In Latin America, once the question of “stateness” was resolved in most countries, civil society has been increasingly participating in new democracies and the political society is getting used to the rules of electoral democracy, the rule of law has been revealed as the most important arena of democratic consolidation (Linz and Stepan 1996). For its part, the state bureaucracy and the economic society are themselves involved in the logic of oligarchies, patrimonialism and patron–client relations. Thus, the effectiveness of the rule of law must be directed towards these improper links and behavior of state bureaucracy and economic society, as a significant enhancement of the liberal democratic system in this region. Liberal Democracy vs. Social Democracy in Latin America The liberal and the republican components of the liberal democratic model are fading or missing in most Latin American countries. This is in part due to the reluctance of Latin American political leaders to be considered “liberal-democrats” a label that usually has a negative connotation in the region. It has commonly been associated with the imperialistic foreign policy of the United States and associated with opposition to the appeal of the Cuban revolution from the 1960s onwards (i.e. Cavarozzi 1992: 211–2). In fact, there is no single significant political party in the region called “Liberal Democrat,”3 mainly because political elites do not like to be identified with the “extreme right” (the reaccionarios) or considered to be inviting further U.S. intervention in the Latin American countries. Some political leaders refer to the “export democracy” model that the United States has allegedly wanted to impose on Latin American countries. It is widely felt in left-wing Latin American universities that the concept of a “liberal democracy” is not a desirable one.4 Instead, Latin American groups and organizations prefer to commit themselves to “democracy” in general, without specifying any reference to the liberal tradition of the concept. This vagueness has permitted, for example, Cuban officials to repeatedly declare their defence of “democracy”, but referring to “social democracy” rather than “liberal democracy”. In the words of Lawrence Whitehead, the choice of Latin American elites has been between a “stunted version of liberal democracy that works” and a “generous vision of social democracy that remains a mirage.” (Whitehead 1992: 154) The paradox of this circumstance is self-evident: the main shortcoming of new Latin American democracies is their lack of commitment to

The (Un)Rule of Law in Latin America  35 republican balances and a liberal protection of rights. These polities remain electoral democracies, or “pseudo-democracies” (Diamond 1999) with some electoral liberalization processes, while serious flaws are evident relating to their capacity to deliver the political goods of the liberal-democratic model. At the same time, political leaders do not even attempt to fulfil the liberal-democratic ideal because of its negative connotations and imperialistic resonance. This would make any liberal-democratic claim an easy target for criticism from left-wing and populist parties that in the past have denounced liberal democracy as “merely the façade of bourgeois domination.” (Cavarozzi 1992: 212) Instead, political leaders prefer to rely on cooptation and repression, “two central strategies in Latin America in flagrant contradiction with accepted principles of liberal democracy” (Whitehead 1992:154) while pursuing a notion of “social democracy” as an alternative. This ideological attempt has failed time and again, possibly because it is too vulnerable to clientelistic distortions (Whitehead 1992: 156), but it is one important reason why crucial aspects of the liberal democratic model, such as the horizontal accountability dimension and the enforcement of the rule of law, have been widely overlooked in the democratic agenda of Latin America (Prillaman 2001: 1–5). Horizontal Accountability According to O’Donnell, horizontal accountability is: “[T]he existence of state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful.” (O’Donnell 1999: 38) This means that it is the responsibility of the elected government to carry out its policies under the rule of law, constructed by democratic means and with functional institutions serving as checks and balances within a democratic political system. Such is clearly not the case in most Latin American countries, where the presidential tradition tends to concentrate unaccountable power in the Executive branch, in a phenomenon defined by Guillermo O’Donnell as “delegative democracy.” (O’Donnell 1994) Delegative democracy refers to the practices of the once elected Executive which is not held to account. The president may decide to follow a completely different political program to that proposed in the election campaign (as happened with Alberto Fujimori in Peru, Carlos Andrés Pérez in Venezuela and Carlos Saúl Menem in Argentina), or there may even be “institutional or informal, indeed illegal and even unconstitutional practices of the elected government, especially between elections.” (Diamond

36  The Unfinished Transition to Democracy in Latin America 1999: 72) Linz goes further in this respect and states that in most presidential systems apart from the U.S., accountability is a big problem because “a president who cannot be re-elected is ‘unaccountable’ (. . . and) even in re-election, the voters have to wait for the end of the presidential term to demand accountability.”5 The lack of horizontal accountability is linked to feeble liberal and republican components of democracy in Latin America, leading to the existence of electoral democracies unable to build judicial powers capable to hold in the transgressions of the other powers (O’Donnell, 1999:31). Most Latin American political systems do not have real checks and balances, or to use the term coined by O’Donnell, their lack of horizontal accountability usually results in delegative democracies. The main features of this illiberal version of democracy are the following: “In delegative democracies the president is taken to be the embodiment of the nation and the main custodian and definer of its interest (. . .) After the election, voters/delegators are expected to become a passive but cheering audience of what the president does (. . .) The president and his most trusted advisors are the alpha and the omega of politics (. . .) The president isolates himself from most political institutions and organized interests, and bears sole responsibility for the successes and failures of ‘his’ policies.” (O’Donnell 1994:98–100) Some indication that accountability mechanisms have improved may be the impeachment of presidents or ex presidents in Peru (Alan Garcia, unsuccessful), Venezuela (Carlos Andres Perez, successful), Brazil (Fernando Collor de Mello, successful) and Ecuador (Abdalá Bucaram, successful).6 However, doubts remain about the ability of either the legislative or the judicial branches to be effective agents of horizontal accountability towards decisions taken by the executive or to check human rights abuses committed by the military, in the above mentioned countries or elsewhere in the region, except in the case of Costa Rica. This is due to the still strong presence of the military in Latin American politics, and the weakness of the judiciary and the judicial system to enforce the democratic rule of law in opposition to patron–client relations and patrimonialism. The Military Resistance to Horizontal Accountability Praetorianism is clearly opposed to the democratic ideal. The role of the army in a democratic context is to be restricted just to national defence purposes, without military interference in the design or implementation of public policies. In the words of Dahl:

The (Un)Rule of Law in Latin America  37 “Clearly civilian control over the army and police is a necessary condition for polyarchy, and the failure of civilian control is sufficient to account for the existence of non-democratic regimes. But civilian control is not sufficient for polyarchy, since some non-democratic regimes also maintain civilian control over the military and police forces; indeed, leaders in these non-democratic regimes employ the superior coercive resources of the military and police to maintain their rule.” (Dahl 1989: 250) In the twentieth century, the role of the armed forces has been strikingly strong in Latin America, excepting for Costa Rica and Mexico. Throughout the 1960s and 1970s the role of the military went further, from interventionism to direct rule in the so called “new authoritarianism” era, when military regimes appeared in Argentina, Bolivia, Brazil, Chile, Ecuador, Paraguay, Peru and Uruguay (Collier 1979). Despite the breakdown and transition of these military regimes in the 1980s, the influence of the chief commanders and the army on the political systems has continued to be strong. Nor has the central role of the military in the decision making process being completely removed and remains either as pressure group, as arbiter or as “protector of the constitution.” Increasingly, direct military intervention against a civilian government is restricted, due to the hostile international attitude towards military governments and dictatorships. However, the privileges and concessions granted to the military in Latin America are still very much in place, especially the military fuero, or the privilege of military personnel to be tried by military tribunals even if charged with crimes of a non military nature (Rial 1996). A consolidated democracy should have a civilian government which must exercise complete control over the military, in order to guarantee the survival of the democratic method and the improvement of its civil rights record. Otherwise, there might be a danger of return to authoritarianism at any time, as the recent experiences of Peru, and the coup attempts in Ecuador, Paraguay and Venezuela during the 1990s have shown. Even if militaries are now-a-days reluctant to seize power and deal with difficult economic problems in Latin America and to face international sanctions from the extended networks of democracies in the world, the power of the military remains a constant threat. Unchecked military power tends to produce a corresponding weakness of the Judiciary. Political areas are taken out of civilian control if military leaders claim exclusive authority over the defence sector, or over territories beyond civilian control in order to face guerrillas or drug trafficking. Frequently the military also maintains overdeveloped intelligence organizations used to reduce civilian power, and commonly exerts undue influence over non military spheres (Agüero 1997; Diamond 1999: 62). The resistance of the military to horizontal accountability is a major problem for the democratic rule of law in Latin American societies. This is

38  The Unfinished Transition to Democracy in Latin America so because such an agency would be beyond the system of checks and balances of the constitutional democratic system, creating large spaces of impunity that constantly affect the quality of democracy and the ability of the polity to protect individual rights. In this sense, a strong military presence in the political system will always allow space for a non-democratic rule of law within new democracies. The constant risk is, then, the temptation of military leaders to ignore civilian law (it is the majority law) and to impose their own military law on a number of aspects. Whether or not this can lead to efficient governance is not the question, but it would certainly be a nondemocratic approach—and very likely an antidemocratic one. Weakness of the Judiciary The constant weakness of the judiciary in Latin America is one of the main features that arise when comparing the presidential systems of the United States and the rest of the Western Hemisphere. In fact, the recent debate about the very viability of the presidential democracy focuses on the fact that the only stable pure presidential democracy in the world is the American one. All other consolidated democracies in the world are either parliamentarian or semi-presidential. This fact may suggest that the American presidential democracy is not precisely a model in itself, but an exception, and that functional democracy can only be guaranteed by means of the parliamentary system.7 In the case of Latin American presidential systems, it has been argued that the constitutional design is missing two important aspects of the original American model: the plurality electoral system and the strong horizontal accountability function of the Supreme Court. The proportional representation system (PR) widely adopted in Latin America has also been subject to analysis relating to its ability to produce the desired result: democratic stability. However, by applying comparative statistical analysis, Arend Lijphart has concluded that PR systems in combination with a parliamentary system achieve the best records in terms of representation, protection of minority interests, voter participation and control of unemployment. For him, “parliamentary PR form of government is clearly better than the major alternatives in accommodating ethnic differences, and it has a slight edge in economic policy making as well.” (Lijphart 1996: 173) Since the PR system can be considered better suited to societies with wider ethnic fragmentation—as in Latin America—the only other options for Latin American regimes is either to shift towards parliamentary systems, or to decisively enhance the horizontal accountability capacity of their judiciaries and judicial systems. Given the historical, cultural and political obstacles that new democracies in Latin America have faced in practice to shift towards a parliamentary system,8 a focus on the challenge to strengthen the whole judicial system, as the proper means to enforce the main pillar of

The (Un)Rule of Law in Latin America  39 a democratic rule of law (Gloppen, Gargarella and Skaar 2003), though still not an easy path may be a more attainable one. In general, the literature on the judiciaries in Latin America describes them as “slow, unreliable, inefficient, under-funded and lacking in public faith and dispirited, poorly paid and trained, lacking in transparency and thus corrupt.” (Diamond 1999: 44) For Pilar Domingo, the weakness of judiciaries in Latin America is due to their historical and pervasive political dependence on networks of patron–client relations, as well as rooted habits, expectations of impunity for government officials and a predatory rent-seeking attitude towards public office. In her words: “Clearly, with regard to the problem of judicial independence from other branches, it is not only a matter of institutional reform but also of shaking off traditions of judicial subordination rooted in the experience of authoritarian rule and the historic weakness of democratic institutions. The process of self-assertion of the judiciary depends not only on specific institutional reforms, but also on the broader political process of democratic consolidation.” (Domingo 1999: 169) The historical factors that are powerful constraints on the independence of the judiciaries in Latin America are their subjection to the orders of the Viceroy during the colonial period, followed by partisan fights between liberals and conservatives in the nineteenth century that made any intention of oligarchies to leave the resolution of their political struggles in the Supreme Courts’ hands out of the question. Later on, both the populist and the authoritarian states grew at the expense of the independence of the judiciaries elsewhere in Latin America, except for Costa Rica. The repeated military takeovers prevented any chance of horizontal accountability of the judiciaries in the Southern Cone, while in Mexico the long term domination of the one-party-system precluded the judiciary from a real accountability function towards the executive. It was only after the wave of transitions to electoral democracies in the 1990s that a favourable political opportunity appeared. Then a real transformation of Latin American judiciaries, from subsidiary branches of the executive to independent agents of horizontal accountability and true guarantors of the democratic rule of law was initiated. However, there are serious problems still being faced. First, the strong presence of the military in the Southern Cone has been an immense barrier to the complete independence of judiciaries. The formal or informal elite pacts that permitted the retreat of the military governments, especially in Argentina, Brazil, Chile and Uruguay, have included a tacit or explicit restraint on civilian courts attempting to try the human rights violations of the outgoing military regimes. In such pacts: “The military agreed to leave power and to accept a new role as an ‘apolitical, obedient, and nondeliberative body’ in exchange of an amnesty

40  The Unfinished Transition to Democracy in Latin America for abuses committed during authoritarian rule (. . .) Political parties agreed to respect the electoral process and share power in a manner commensurate with the voting results (. . .) Capitalists agreed to accept legal trade unions and collective bargaining in exchange for significant state subsidies, guarantees against expropriation or socializing property, and promises of labor peace from workers’ representatives.”(Karl 1990: 11) The transitional pacts are also described as “redefining rules governing the exercise of power on the basis of mutual guarantees for the ‘vital interests’ of those entering into it” (O’Donnell and Schmitter 1986: 37). Then, the role of the judiciary in democratic transitions is limited in relation to the military, a non elected body which is in-practice unaccountable to the judicial branch. But some other areas are also beyond the reach of the judiciaries, as a result of pacts such as these, like the judicial revision of unlawful acts carried out by the executives in order to implement their economic policies. The only area that this kind of transitional pact has left to the revision of the judicial branch is the electoral arena. This is due to its importance to the overall legitimacy, inwards and outwards, of the new electoral democracies (Pastor 1999a: 78). Apart from the military challenge, William Prillaman has identified three crucial variables for a healthy judiciary in Latin America: independence, efficiency and access. According to Prillaman, these variables are linked “with the ability of the judiciary to ensure the democratic regime, foster economic development, and build popular faith in the rule of law” (Prillaman 2000:15). It is also worth remembering that the independence of the judiciary from any other government agency is not an end per se, but a means to achieve the following goals: the impartiality of the judges; the capacity of the judiciary to check other branches and the military; and the very basic condition of guaranteeing the fairness of every judicial process (Shihata 1995: 222). As Ungar has argued: “Democracy cannot exist without the rule of law. A Constitution is useless without a judiciary that supports it, a law is ineffective without officials who uphold it, and an election is empty if the winners do not respect the rights of all citizens” (Ungar 2002:1). With respect to the efficiency of the courts, the main problems are insufficient funding, lack of qualified personnel and outdated laws and procedures. In 1993, for example, the Venezuelan judiciary received only 0.4% of the national budget—compared to 5% in Costa Rica and 1.5% in the United States—, while 80% of the judges’ time was devoted to dealing with administrative issues and the rest (20%) to solving legal issues (Casaus 1995: 59). The picture of Venezuela is not dissimilar from all other Latin American judiciaries:

The (Un)Rule of Law in Latin America  41 “One recent survey of Latin American magistrates found that judges in Argentina spend up to 70 percent of their time on simple bureaucratic tasks such as filling out forms to order office supplies, while similar chores consume up to 65 percent of a judge’s time in Brazil and 69 percent in Peru. In Ecuador, Supreme Court justices charged with administering the court system devote more than four days a week to administrative matters and the Supreme Court president personally dispenses funds to purchase gasoline for prosecutors visiting crime scenes and approves leave requests for judicial employees.” (Prillaman 2000: 23) There is also a lack of appropriate equipment and administrative-judicial and purely administrative organization, aggravated by some resistance of judges elsewhere to rely on professional managers and administrators. However, this is a problem that can be solved with political will to really enforce the horizontal accountability capacity of the judiciary. One of the ways to do so is by means of judicial councils, also independent from the executive and the judiciary, who carry the administrative responsibility of organizing the court system. The assumption is that once relieved from administrative tasks, judges would take substantive judicial issues more seriously rather than administrative ones. As will be seen in chapter 3, the creation of judicial councils has been one of the steps taken in the judicial reforms of the 1990s, with mixed results in practice because the requirement of independence has not been completely fulfilled in most cases. Flaws of the Judicial System There are clear indicators of inefficient and ineffective administration of justice in Latin America, such as: case delays, limited access to justice, lack of transparency, the lack of predictability of court decisions, lack of independence of the judiciary, shortage of judges and other resources, lack of alternative dispute resolution mechanisms, and weak public confidence in the judicial system (Rowat 1995:vii). In recent polls, the public has expressed significant dissatisfaction with the judicial system: 60 to 85% in Bolivia, Colombia, Mexico and Peru. In Venezuela, the poll registered 90% of public dissatisfaction towards the courts, one of the worst figures worldwide (Prillaman 2000: 172). One well known Spanish saying shows the very problem of the enforcement of the rule of law in the Americas: “la ley se obedece pero no se cumple” (law is acknowledged, but not implemented). Apparently, the origin of this institutionalized practice was the centralized bureaucracy found in Habs­burg Spain. Commands were repeatedly sent that were impossible to implement in the distant American colonies, notwithstanding official disposition to obey (Peeler 1998: 27). It was not uncommon to receive the order to erect buildings in unsuitable places (the middle of a swamp, for example),

42  The Unfinished Transition to Democracy in Latin America while some instructions were mixed up resulting in constant confusion regarding the orders received. The incoherent and incontestable orders from the Metropolis (Madrid or Lisbon) soon led local authorities in the New World to bypass these commands, noting in the margin: obedezcase pero no se cumpla (to be acknowledged, but not to be implemented). By this means “officials could selectively ignore royal edicts that would cause too much damage to local interests” (Schor 2002: 5). Local authorities pretended to honour the orders and laws tailored in distant Madrid or Lisbon by accepting them in principle while ignoring their implementation in practice.9 Nevertheless, the rule of law has suffered the consequences of this colonial heritage, because the rule of law has been constantly suspended, ignored or simply violated by national and local authorities in independent Latin American countries. Another huge problem from the perspective of the rule of law within a democratic context is the limited access to justice that these polities have in practice: “For large sections of the population, basic liberal freedoms are denied or recurrently trampled. The rights of battered women to sue their husbands and of peasants to obtain a fair trail against their landlords, the inviolability of domiciles in poor neighbourhoods, and in general the right of the poor and various minorities to decent treatment and fair access to public agencies and courts are often denied. The effectiveness of the whole ensemble of rights, democratic and liberal, makes for full civic and political citizenship. In many of the new polyarchies, individuals are only citizens in relation to the one institution that functions in a manner close to what its formal rules prescribe—elections. As for full citizenship, only the members of a privileged minority enjoy it.” (O’Donnell 1994: 45) This is the main approach of the essays contained in Mendez, O’Donnell and Pinheiro (1999). For the authors of this collective work, the rule of law is just inexistent for large sectors of the population in Latin America, particularly women, children, indigenous peoples, landless peasants, inmates and other similarly deprived sectors, because they simply do not have access to justice. For them, the police and institutions of criminal law tend to act as “border guards”, protecting the elites from the poor.10 In fact, they argue that Latin American democracies are far from being capable of assuring liberty and justice for all, since middle class and elite crimes (such as corruption, financial scams, tax evasion, exploitation of child or slave labour, and drug trafficking) remain widely unpunished. The picture of Latin America, then, is one of a group of illiberal societies, where the elites employ the institutions of criminal law as instruments of repression and discrimination against the powerless and the underprivileged:

The (Un)Rule of Law in Latin America  43 “Indeed, the vast majority of those who are punished or imprisoned in every society in Latin America, with the exception of those committing homicide or other horrendous crimes against persons, are the powerless and the underprivileged—exactly those whom democracy intends to protect through the rule of law.” (Mendez et al. 1999: 2–3) The conclusion of the authors is that the main problems of the rule of law in Latin America are the following: 1. Flaws in the existing law, and discriminatory laws. 2. Discretionary applications of the law against the vulnerable. 3. For governmental official, citizens are not bearers of rights, but supplicants for favours. 4. Difficult access to the judiciary and biased process. 5. Lawlessness, or absence of legal state due to the privatization of the law—by local bosses—in many regions.11 However, this severe judgement of Latin American societies may be misleading if it leads to the conclusion that there is no rule of law at all in this region. Without trying to underestimate the serious criticisms of the application of rules in Latin America, and despite the evident discrimination against the powerless and the underprivileged, it is difficult to agree with the statement that there is no rule of law at all in these societies. There is a long standing tradition in most Latin American countries of legality and even the precise application of the letter of the law, in wide ranging legal areas—for example, commercial law in Colombia or labour laws in Mexico. It is also true that not all areas of the law are equally protected by courts in these same countries, and that significant sectors of the population are excluded in practice from the law’s protection. However a more precise picture would show—suggested to some extent through the collection of essays in Mendez, O’Donnell and Pinheiro—the incompleteness of the rule of law, as there are several areas where the rule of law is incomplete or discretionary, while some others indeed are honoured by the judicial and excessively legalistic tradition in Latin America. Probably the best way to observe the strengths and limitations of the rule of law is by looking into the application of the laws towards upper and middle classes, in comparison to the application of law towards the underprivileged and the poor. Undeniably, in statistical terms there is a huge bias against the latter.12 But even against upper and middle classes, although laws are sometimes applied in a consistent legalistic manner, and sometimes they are applied in a discriminatory way. For example, homicides, frauds, robberies and drug or arm smuggling, will be severely punished even for members of the upper and middle classes in most Latin American societies if they are a) located in urban areas, b) committed against another member

44  The Unfinished Transition to Democracy in Latin America or ­members of the middle and upper classes, c) widely commented in the media, and d) there are no political implications about the result of the courts’ verdict. Then, instead of a picture of a legal system constantly directed against the underprivileged in all areas of criminal justice, a somewhat tamed picture with grey areas, inconsistency in the application of laws, characterized by the uneven performance of the court system—albeit permeated by corruption and inefficiency—may appear if we take into account the following situations: 1. In urban areas there are more courts, more trained personnel and more efficient legal processes than in rural areas. Due process of law guarantees are usually best fulfilled in urban environments than elsewhere. 2. Members of the middle and upper classes have better access to courts, better knowledge of their rights, and better knowledge of their legal defence possibilities. Thus, when confronting each other, their situation tends to be closer to an “equality in front of the law” situation.13 3. When the undue influence of the upper classes infringes on the process, the covering of the events by the media (press, television, and radio) tends to prevent biased decisions of the courts. 4. The political importance of a given case is crucial, because when this variable appears, the rule of law is very likely to be “suspended”. However, if the process is not politically relevant, it may be solved according to its merits—save for the corruption practices that allow other sorts of undue influences as will be considered in more depth in chapter 8. There are some examples to show that sometimes the law does actually rule in Latin America. The most outstanding can be found in the impeachment processes against presidents Collor de Mello in Brazil, Abdalá Bucaram in Ecuador and Carlos Andrés Pérez in Venezuela. In Mexico, there has been a history of successful enforcement of labour laws that have frequently provoked angry opposition from Mexico’s business sector. In Colombia, small firms have successfully presented charges against large corporations, as an example that sometimes the rule of law operates as expected. Nevertheless, even if in some areas and circumstances the rule of law prevails, it is constantly reported that for large sections of the population the rule of law tends to be the exception, rather than the rule in Latin America (Panizza and Barahona de Brito 1998). Corruption and Patron–Client Relations It is probable that the main obstacle to an effective rule of law in Latin America is the undue influence that oligarchies have on the judicial processes.

The (Un)Rule of Law in Latin America  45 Elites commonly use channels of corruption, patrimonialism and patron–­ client relations, for constantly perverting the process of law in their favour, at the expense of minorities and the underprivileged. Moreover, patron–­ client networks and patrimonialism constitute big obstacles for the adoption of minority rights or for their full accomplishment when they already exist. The oligarchic tendency is, then, to challenge the universal character of the principle of legality by manipulating it in order to produce particular deviant applications of the law. In short, Latin American oligarchies are not willing to be subject to the majority rule of law, demanding the privileged application of effectively privatized laws. Political corruption is a huge hindrance to the rule of law when it permeates the whole legal process, from police actions to courts decisions and even to the prison system. Authoritarian systems sometimes tend to tolerate, or even to encourage a certain level of corruption, in order to allow channels for the distribution of patronage, pork barrel politics, as means to thank loyalties while in control of a legal “Damocles’ sword” reserved for political enemies.14 But there is no room for any of these channels of retribution or punishment by legal means within a liberal democratic context, because the principle of due process and impartiality of the judicial branch is paramount. If corruption persists within an electoral democracy, its corrosive effect will work along with patron–client relations and patrimonialist networks to impede the completeness of the rule of law, so maintaining low quality democracies in Latin America. With respect to patron–client relations and patrimonialism, these practices are present also in some old democracies, but not as extensively as in new democracies. In the latter, patron–client networks and patrimonialism are enormous problems for the rule of law, because the particularistic nature of the promoted privileges widely affects and undermines the principle of equality before the law and the realization of individual and minority rights. Inefficiencies, corruption, circumvention of laws and prison systems are key areas to analyze flaws in the due process of law in Latin America. First, because the privileges in the application of laws demanded in practice by the oligarchic logic prevents the principle of equality, which is the cornerstone of the rule of law. Whenever laws are ignored by local bosses (caciques), entrepreneurs, police and military officers or government officials, private unwritten laws replace the laws. Latin Americans therefore do not obey the rules they gave themselves (as in the democratic rule of law), but oligarchic and private rules that operate in practice. Second, because the deprivation in practice of individual and minority rights is simply anti-democratic, in the sense that is far from being fair, and “we find injustice in any society that systematically ensures that some persons’ lives go worse than others.” (Christiano 1996: 55) When inefficiencies, corruption or undue influences appear in the court system, the affected person will be facing an arbitrary situation, that will deny his or her rights from the very moment of detention, and will continue through the prosecution phase, sentencing and until the

46  The Unfinished Transition to Democracy in Latin America completion of his or her prison term. And third, because in a high quality democracy, aspiring to be a near to fair society, “those with social power should extend to everyone the rights that they have consciously or habitually claimed for themselves.” (Dworkin 1971: 165) In Latin America, there are many social sectors whose rights are constantly ignored in practice by oligarchic structures or by inefficient and prone to corruption judicial systems. The most vulnerable sector is without doubt the indigenous population, especially when they are geographically far from courtrooms, ignorant of the laws that they should be obeying, and understanding little or next to nothing of the official language. So far, even after judicial reforms during the 1990s, very few improvements have been implemented in order to ensure universal access to efficient court systems (Rowat 1995: 17; Ungar 2001). The partial success of judicial reforms indicate the boundaries of the rule of law in new democracies, while helping to determine the possibilities for a really democratic rule of law in Latin American societies. Conclusions The new regimes of Latin America continue to be low quality electoral democracies due to the partial, uneven and inefficient application of the rule of law that can be observed in practice. One problem against a more committed political decision to enforce the rule of law in Latin America is the negative perception towards the concept of liberal democracy among political elites. They prefer to pursue a vague ideal of social democracy or popular democracy—which is more vulnerable to the patron–client features of Latin American political systems—than the completion of the liberal democratic ideal. In particular, political elites have long overlooked the structural weakness of the judiciary and the judicial system. The judiciary is not a sufficiently strong political actor in Latin America, mainly because of the absence of the judiciary’s real political independence from the executive power and because of the political presence of a military that is not held to account in most countries. Some other factors—such as the under funded, under trained and poorly administrated courts—are also important in explaining judiciary’s failure to check other agencies of government and their low capacity to enforce the rule of law, especially in politically relevant cases. Even if the rule of law is not completely absent in Latin America especially when applied to members of the urban middle classes, and in commercial and business domains, the ineffectiveness of the implementation plus undue influences that—through manipulation of patron–client and patrimonial networks—oligarchies have over court decisions at the local, regional and national level, repeatedly blocks the realization of individual and minority rights in practice. When minority rights are included in the constitutional

The (Un)Rule of Law in Latin America  47 order, their realization is in practice highly dubious in these countries due to the restricted access to justice for the underprivileged, the poor and the indigenous population. The rule of law is seriously curtailed by means of particular and habitual oligarchic privileges, and large sectors of the population do not obey the laws they gave themselves but rather the rules that minority elites impose in-practice. Such shortcomings make the rule of law a weak arena of democratic consolidation in Latin America that has been labelled as the “un-rule” of law, or more precisely a picture of incompleteness of the rule of law in the new democracies. In the new context of democratization, the uneven application of the law and the weakness of the judiciary have attracted high levels of social dissatisfaction and international disapproval. A wave of judicial reforms spread all over the continent as an attempt to correct the most striking shortcomings of the judicial apparatuses. The next chapter explores the origins, implementation and results of judicial reforms, considering in particular the implications for the overall process of democratic consolidation in Latin America.

3 Judicial Reforms in Latin America Towards More Independent, Efficient and Impartial Judiciaries in the Region

This chapter examines the judicial reforms attempted in eleven Latin America countries during the 1990s.1 The similar timing of the reforms, within a context of democratic transition and consolidation justify this comparison. The main questions that this chapter addresses are: Are judicial reforms deep enough to ensure the enforcement of the rule of law in accordance with the democratic transition and consolidation process? Are they enough to satisfy the requirements of the demands from the society and from the international organizations that constituted the factors of the reforms in the first place? And finally: How much independence, efficiency and impartiality of the judicial system can be realistically expected from the judicial reforms recently implemented in Latin America? In order to answer these questions, the factors that made the judicial reforms necessary are considered first, paying especial attention to the domestic and external pressures that emerged both from within the societies themselves and from international organizations. There then follows a brief description, in a comparative perspective, of the judicial reforms—with a particular focus on the guaranteed tenures and new appointment procedures for Supreme Court judges, the newly created judicial councils, the reorganization of crucial components of the judicial systems such as general attorneys’ offices and ministries or secretaries of justice, the institutionalization of oral procedures within a civil law tradition, the new alternative mechanisms to resolve disputes, and the measures focusing on the efficiency of the courts, such as training, budget dispositions and anti-corruption controls. Then, an overall assessment of the judicial reform will follow, considering particularly the impact on the independence, efficiency and impartiality of the courts after all reforms has been effectively put into practice. The main argument put forward in this chapter is that judicial reforms in Latin America, as part of the reform of the state, have been a good start for obtaining better court systems as demanded by both society and international agencies. However, further and deeper reforms are still needed in order to ensure a long lasting evolution of the judiciary, to make it more capable of contributing decisively to the consolidation of new democracies in Latin America.

Judicial Reforms in Latin America  49 Transition, Judicial Reform and Democratic Consolidation During the 1990s, coincidental with the process of transition to electoral democracy, several Latin American countries launched judicial reform campaigns as part of the trend of state reform that hallmarked the politics of the entire region. This was a response by authorities to the general social dissatisfaction with the judicial sector, the mounting pressure from international agencies, as well as a means to offer a better judicial environment in order to attract further foreign investment. The judicial reforms were approved and implemented in all countries considered in this comparative research, with the exception of Costa Rica.2 Most of the reforms were intended to improve the independence, efficiency and impartiality of the courts, the judiciary in particular. However, the reforms’ lack of clear purpose, along with vested interests protected by politicians and the lack of political will to pursue a deeper reform, resulted in mixed outcomes. All the judicial reforms tackled the problem of the judicial efficiency. There was a relatively genuine intention to improve the mechanical aspects of the judicial system, such as better training for judges, the building of more premises and prisons, programs for modernizing the equipment of the sector in order to reduce the backlog of cases, and the introduction of alternative dispute resolution mechanisms. However, despite these efforts and the economic resources dedicated to judicial reforms—both from national budgets and from international agencies—the Supreme Court’s lack of sufficient independence and impartiality remains a major shortcoming in most judicial systems, with the exception of Costa Rica and Brazil. Not even the creation of judicial councils, as the main tool by which to manage the judicial career and the self administration of courts, was enough to guarantee a really independent and unbiased court system able to sustain the rule of law, or to enable the judiciary to check executive or legislative powers, or the military. The origin of the judicial reform impulse started back in the 1970s, with a movement called “Law and Development” which arose in many U.S. universities and agencies related to Latin America. Sadly, the appearance of new authoritarian regimes in the region meant that the Law and Development movement became dispirited and finally disappeared (Salas 2001: 18). In the 1980s, U.S. intervention in the Central American conflict gave rise to the need for judicial reform in order for a real democratization program to take place in these countries. The Kissinger Commission on Central America recommended that USAID develop programs to support justice reform, as an important step to strengthening nascent democracies in Latin America (Sarles 2001: 50). The result was the Administration of Justice Program at the International University of Florida with the purpose of fostering the rule of law in Central America, even if the original scope was later expanded to include some other countries of South America (Bolivia, Colombia, Ecuador,

50  The Unfinished Transition to Democracy in Latin America Peru, Uruguay and Venezuela). Since then, however, the main obstacle to a meaningful reform of Latin American’s judicial systems has been the lack of political will of political leaders to subject themselves to the scrutiny of an independent court system (Salas 2001: 21–25). A new “rule of law movement” emerged from these first steps, and was included or at least considered in most Latin American public policies under the overall coverage of the so called “reform of the state process.” In its broader aspects, the politics of reforming the state included three sets of policies: the first, directed to allowing the political liberalization that would permit the transition to electoral democracies (the establishment of Electoral Tribunals, deregulation concerning publishing and the media, reforms to electoral codes and practices, etc.) The second proposed modifications to dismantle the economic interventionist capacity of the state, in line with the new demands of the monetarist (neo-liberal) policies that dominated the region in the 1990s (in fact, the reforms that paved the way for the privatization process in Latin American countries).3 Finally, the reform of the state was also aimed at state institutions, in order to enable them to cope better with the new conditions of economic and political liberalization. By these means the basic scheme of a free market system, liberal democratic institutions and the rule of law was created (Salas 2001: 18; Rico 1997: 32–3; UNDP 1998: 10). Figure 3.1 is an outline of the main reforms, broadly grouped into three main categories. The third aspect of the Reform of the State included, then, a set of reforms that allowed the more efficient operation of the institutions of the state. In this stage, the reforms were directed towards decentralizing crucial aspects of the Public Administration, devolution of power to Congress, a new and more independent role for local governments (municipios), the granting of autonomy to central banks, and reform of the legal and judicial systems. In the opinion of most observers, the latter was pursued specifically in order to enable both the law and the court system to deal more adequately with the new circumstances of open markets and open political systems (Domingo and Siedler 2001: 142; Posada-Carbo 1998: 2; USAID 2002:100). Soon, the judicial reform showed a dynamic of its own, due to the huge problems found in the field of administration of justice that required specialized and immediate attention. Also, Latin American politicians saw the overall process of state reform, including the politics of judicial reform, as a source of both domestic and external political legitimacy. The involvement of civil movements, economic actors and powerful international organizations supporting the judicial reform proved to be such an important coalition that it could not be ignored by the authorities. As a result, the decade witnessed the most widespread implementation of judicial reform throughout the region. In the sample considered in this research, eleven out of twelve countries underwent extensive judicial reforms from 1988 to 2000. The judicial reform movement saw the rule of law as a decisive factor, if not the most important, to reinforce the consolidation of the new

Judicial Reforms in Latin America  51 Political liberalization New electoral codes and organizations. Mass media deregulation. Electoral Tribunals. Privatization and deregulation New commercial codes New foreign investment laws Reform of the State

Privatization via stock market operations. Elimination or substitution of subsidies. Reform of the institutions of the State Decentralization. Devolution of power to Congress. New municipal laws. Autonomy of Central Banks. Judicial reforms.

Figure 3.1  Reform of the State.

democracies in Latin America. This is because the new democracies would be able to actually deliver the goods of a liberal democracy—as rights protective regimes—with a law constructed by democratic means which was applied evenly and impartially to all, disregarding socio-economic status, ethnic origin or political influence. So far, this is still unfulfilled in most Latin American countries, making their democracies shallow, with an uneven application of the rule of law that keeps them in the limbo of an unconsolidated democracy. However, it is important to insist that in the new democracies of Latin America the law is rigidly applied in certain legal areas while it is unevenly applied in some others, depending on the country and the surrounding circumstances. Apart from the areas of law mentioned in the previous chapter (commercial law in Colombia or labour laws in Mexico), all the new

52  The Unfinished Transition to Democracy in Latin America democracies have given special attention to the application of electoral rules, as they are the legal foundation of the electoral democracy that such regimes represent. Thus, it has been essential to maintain a functional legal framework for elections, along with trustworthy electoral institutions and genuinely independent electoral tribunals in order to give the necessary guarantees to provide an unbiased and credible counting of votes and election results. Otherwise, the legitimacy of the electoral outcome would be severely questioned, with suspicion about the persistence of structural bias in the work of the electoral tribunals.4 This explains why it is possible to find a well provided for and administered rule of law relating to electoral aspects in all the new Latin American democracies (except for Mexico before 1997 and Peru after 1992). But this condition—which was essential for the electoral legitimacy of the new regimes—has not been prevalent in the administration of law in all other legal fields in these societies. In particular, in areas of civil and penal law the rule of law has been most conspicuously disregarded. In some cases, in fact the rule of law is not the rule, but the exception.5 The role played by the judiciary in the democratic transition process in Latin America was usually circumscribed by the rulings of the electoral tribunals before and after the elections. Some were given a completely independent status, while others were considered part of the judicial power. In the post-transition phase, nevertheless, the judiciary has been an under achiever in the light of the new possibilities that were opened up for an electoral democracy. These possibilities were to ensure true political independence for the judicial branch, to assure sufficient economic resources from the national budget, and to push for the required mechanisms that would empower the judiciary to check the executive when necessary (Couso 2003:89). The judicial systems have also shown limitations in their ability to enforce the constitutional bill of rights—as well as the provisions of international treaties and covenants on human rights—in practice, not just in principle. Cases where political interests are entangled in the verdict have proved to be especially tricky, tempting politicians to incur in undue influence over particular judges, and over the organization of the judicial system as a whole. Judicial reform proposals strategically designed to maintain executive authority over key issues—such as the ability to reshuffle the bench or to control the judicial budget—, along with the low prestige of the judiciary in Latin America contributed to the perpetuation of a weak judicial branch in the new democracies, even after the judicial reforms were implemented (Stotzky 2003: 202). The Social Claim for Judicial Reform Widespread social dissatisfaction with the judicial sector has been present in most Latin American societies, particularly since the start of the democratization phase in the 1980s. The judicial branch which has been historically

Judicial Reforms in Latin America  53 moulded to be subordinated to the executive authoritarian will,6 was now in need of a transformation in order to cope with the new functions required by a democratic political system, and by a new social, economic and international environment that demanded a renewed legal framework for commercial transactions, in order to make rules clearer for making business and for attracting foreign investment. As Agüero and Stark have considered, the factors behind the judicial reform movement were: a) a long-standing dissatisfaction in many quarters with the judiciary, b) the new political environment brought about by the democratization process, c) economic liberalization and market reforms, and d) a sustained international interest in these measures (Agüero and Stark 1998: 377). The first three factors show the overall common denominator of social pressure for reform of the judicial system. Businessmen, bankers, laymen, students, the press and social organizations were among the social sectors that expressed dissatisfaction with the judicial system, either because it interfered with property rights and usually slowed up the legal framework for making business—adding transaction costs in consequence—, or because the biases, inefficiencies and injustices produced by the judicial process affected specific groups in particular (students, the indigenous population, women, youngsters). There has been widespread distrust of the judiciary as an institution across the region. Figure 3.2 shows trust levels, from the lowest 20% in Peru to just over 50% in Uruguay. Only Brazil, Costa Rica and Uruguay registered more than 40% trust in the judiciary, followed by Chile, Colombia and Paraguay with just over than 35%. All other cases show figures of less than 30% with judiciaries described as “low, unreliable, inefficient, under funded and lacking in public faith and dispirited, poorly paid and trained, lacking in transparency and thus corrupt.” (Diamond 1999: 44) This distrust is explained by the fact that they are typically “weak, over-politicized and heavily dependent on and subordinate to the executive branch. They often fail to act as effective mechanisms of political checks and controls.” (Buscaglia and Domingo 60 50 40 30 20 10 0

ARG BOL BRA COL CR

CHI

EC

MEX PAR PER

Figure 3.2  Trust in the judicial power. (Average 1995–1998.)7

UR

VEN

54  The Unfinished Transition to Democracy in Latin America 1997:1) Also, “a generalized image of the supreme courts in the region is one of weakness, corruption, over-politicization and general subordination to the executive.” (Domingo 1994:15) This is nothing like the ideal role of the judiciary as “the constitutional guardian of rights and principles against the acts and possible abuse of power of the other branches of the state.” (Domingo 1994:13) Social dissatisfaction with the court system has been expressed in different ways in the countries of the sample. In Mexico, the failure of the Supreme Court to pronounce on the nationalization of the banking system in 1982 produced deep distrust among the business community on the reliability of the judicial system (Elizondo 1992). In Argentina, President Carlos Menem proceeded with an extensive judicial reform in 1991 in response to repeated demands from entrepreneurs for a more reliable legal system for making business, added to widespread public disapproval of the judicial system, and to NGOs activities—such as Libra Foundation, Instituto de Desarrollo Empresarial Argentino (IDEA), Poder Ciudadano, Centro de Estudios Institucionales (CEI), and Fundación La Ley, among others—demanding a comprehensive judicial reform (Obando 2000).8 In Bolivia, international pressures and NGOs demands converged in 1991 to produce a legislative debate about the necessity for judicial reform. As a result, the executive responded with the creation by decree of the National Council of Reforms to the Judicial Branch (Consejo Nacional de Reformas al Poder Judicial). In parallel, the Trade Chambers of La Paz, Cochabamba and Santa Cruz worked along with the Inter-American Bar Foundation in order to establish commercial arbitration and mediation centers, while NGOs such as La Fundación San Gabriel and Capacitación y Derechos Ciudadanos participated in the building of the judicial reform (Obando 2000: 4). In Colombia, in response to a mixture of drug dealer violence, guerrilla attacks and a widespread legitimacy crisis, which was marked by a violent wave of dynamite attacks, car bombs, kidnappings and assassinations in 1989–1990, Virgilio Barco’s government recognized the need for a National Constituent Assembly to be held in 1991. In fact, the process started with an impressive mobilization of university students during the March 1990 elections, who distributed a 7th ballot (la séptima papeleta), calling for a constitutional convention. The president authorized the counting of ballots, resulting in a vote of 89% for the initiative. The Supreme Court later issued a ruling that upheld the constitutionality of the proposal and the government decided to act in consequence, calling for an election in December 1990 to select delegates to the Constitutional Assembly (Hoskin 1998: 59). The Assembly, which met repeatedly from February to July 1991, included not only the traditional Liberal and Conservative parties, but also representatives from the former guerrilla group M-19 and the Movimiento de Salvación Nacional. Finally, the new Constitution became supreme law in July 1991, as the culmination of a historic social movement that ended

Judicial Reforms in Latin America  55 in reducing the presidential powers (by limiting the extraordinary powers to issue laws and a parliamentary motion of censure to cabinet officers), and including also an extensive reform of the judicial branch (Hartlyn and Dugas 1999: 281–2). The other countries in Figure 3.2 also experienced significant levels of social involvement in the origins of the judicial reforms. Brazil included judicial reform as part of the new Constitution that was submitted to a popular referendum in 1988.9 Judicial reform in Chile was implemented by the government of Patricio Aylwin, in response to social demands for justice and accusations by NGOs that the Chilean Supreme Court was ignoring the human rights abuses committed during the Pinochet regime (Prillaman 2000: 140; Vargas and Duce 2000: 2). Judicial reform in Venezuela was first designed during the government of President Carlos Andrés Perez, but his fall in 1993 postponed its implementation for a number of years. It was not until the government of Hugo Chávez and as part of the plebiscitary renewal of the Venezuelan political system, known as the Revolución Bolivariana, that the 1999 Constitution incorporated the judicial reform of 1998 (UNDP 1998: 26). The case of Peru is ambiguous, as judicial reform was proposed mainly from above, by the Fujimori government prior to the 1992 coup; nevertheless, the new Constitution which was approved by referendum in 1993 embraced judicial reform (De la Jarra 2001). The cases of Ecuador, Paraguay and Mexico do not indicate the significant participation of NGOs or social mobilization supporting judicial reforms imposed from above. Judicial reform in Uruguay was implemented in 1989, apparently imposed from above as well (www.poderjudicial.gub.uy). The Pressure from Outside The international climate was also increasingly favorable towards the implementation of judicial reforms during the 1980s and 1990s. The reconsideration of the role of the state was a common worry in relation to the monetarist economic policies implemented throughout the region, as part of the adjustment programs and the requirements of the IMF stand-by loans designed to face the crisis of Latin America’s “lost decade”—the 1980s. A new model of development was initiated, placing an emphasis on exportoriented policies, which implied the restriction of state interventionism and an extensive deregulation of economic activities. The purpose was to make room for the private sector to do business; but this space also required an adjustment of the legal framework and a more efficient judicial system, better equipped to protect commercial practices and property rights, for the benefit of both domestic and foreign investors. The main effect of the strengthened capacity of the judicial system was, from this point of view, to reduce transaction costs, and to provide greater guarantees that property rights and aspects of law and order would be enforced. The economic side

56  The Unfinished Transition to Democracy in Latin America of the judicial reform emphasized the need to go along with the reform of banking laws, bankruptcy laws, tax codes and anti-trust laws as well (Messick 1989; Ungar 2001: 148). However, the most direct external pressure for the implementation of judicial reforms came from international agencies involved in the task of fostering the rule of law in Latin America from the 1980s onwards. USAID, the external aid agency of the United States, tried to foster the creation of better human rights protection regimes in Central America, after their transition to democracy during the Reagan era, by launching the Administration of Justice Program which started in El Salvador in the 1980s. Hitherto, millions of dollars were directed through specific programs of judicial reform by international organizations such as the World Bank, the Inter-American Development Bank (IDB) and the United Nations Development Program (UNDP). All these organizations followed the USAID assumption that promoting better administration of justice is fundamentally pro-democratic, even if some of them later expanded their initial idea to include the much broader notion that the rule of law is critical to democracy. Thomas Carothers has pointed out that there are many agendas behind the international promotion of the rule of law reform in Latin America. In part because the “rule of law” appears to have a different meaning to different people, and to different international agencies as well. The main positions about the desired effects of the rule of law aid, as he aggregated them, are: a) Democracy promotion, separation of powers and judicial independence; b) Human rights and social justice, concerned with providing wider access to justice particularly to disadvantaged groups, such as indigenous communities; c) Economic development and d) International law enforcement against transnational crime (Carothers 2001: 7). The World Bank has proved to be the most fervent advocate of the economic development task of the rule of law, thus giving priority to the efficiency of courts and to the reform of commercial and banking codes in its programs. The IDB also supports the economic side of the rule of law reform, but is also responsive to the need to increase access to justice for disadvantageous groups (Biebesheimer 2001: 102). The UNDP is one of the most vocal supporters of the promotion of democracy through judicial reform, while USAID and the Justice Department of the United States have also shown a particular interest in promoting international law enforcement on drug trafficking and money laundering laws and treaties, which are key themes in the U.S. policy toward Latin America. These two agencies helped “faceless judges” in Colombia during the 1990s, for example, in an effort to increase the enforcement capacity of the Colombian judicial system against drug cartels, albeit a scheme highly criticized by human rights groups (Carothers 2001:14). Some observers have identified severe problems regarding the involvement of international organizations in the judicial reform trend. The most important—apart from the alleged naïveté of donors, attempting to export

Judicial Reforms in Latin America  57 their own laws to a quite different context and within another judicial tradition—is the complete lack of coordination among the tasks chosen by different agencies, which have frequently resulted in conflicting strategies advised by two or more agencies concerning the same country (Salas 2001: 46).The most striking problem is that “often, donor organizations are simply not aware of areas of reform that they are each addressing.” (Domingo and Sieder 2001: 144) “To take just one small example, an emphasis on judicial efficiency (coming from an economic oriented programme) can clash with an emphasis on judicial access (coming from a democratic oriented programme)— increasing access to the courts may heighten delays in already backedup courts. “Another area of difference between the rule of law efforts in the democracy and economic development domains concerns the substantive legal focus. Economic oriented programmes usually emphasise commercial laws and the commercial side of courts’ work. Democracy oriented programmes tend to concentrate on the criminal justice side.” (Carothers 2001: 12–13) A clear shortcoming of international donors’ policies for promoting rule of law reforms is that “the availability of important publications is often restricted, or its cost is prohibitive.” (Salas 2001: 35) The information supposedly obtained during the implementation of the programs has been poorly disseminated, most of it unpublished and, increasingly impossible to access. This is due to the confidential category given to this type of information by the consultancy agencies in charge of the implementation of the programs—just a handful of consultancies for each country, as a consequence of the technical requirements set by the donors—.10 However, the effort made by the international organizations has been decisive in tackling the lack of political will of local leaders to subject them to the scrutiny of a strengthened court system. USAID has more than a dozen justice reform programs currently in operation in 16 Latin American countries (Sarles 2001: 70–2), while the IDB has 18 such programs operating in an equal number of Latin American countries (Biebesheimer 2001:114–41). The World Bank dedicates around 200 million U.S. dollars annually to judicial reform programs and has been involved in judicial reform projects in Venezuela,11 Argentina, Uruguay, Colombia, Peru, Brazil and Chile, among other countries in Central America and the Caribbean (Prillaman 2000: 4; Rowat et al 1995). The United Nations, for its part, supported the Montreal Declaration on the Independence of Justice of 1983, and the Basic Principles on the Independence of the Judiciary instrument was adopted by the General Assembly of the United Nations in 1985. The existence and the work of the “Special Rapporteur on Judicial Independence and Impartiality” have been

58  The Unfinished Transition to Democracy in Latin America based precisely on this international instrument (Shetreet and Deschenes 1985: 445; see Appendix 1). In the 1990s, Latin American judiciaries were reformed, in an effort to create more stable democratic systems. In some cases, the reform was part of a brand new Constitution, while in others it was an answer to the need for greater legitimacy in the democratization process. Table 3.1 gives the dates of democratic transitions and the dates of the implemented judicial reforms. For this selection of countries, only Costa Rica did not undergo judicial reform in the 1990’s. Brazil, Colombia, Ecuador, Paraguay and Peru included judicial reform as part of their new constitutions. Peru initiated the reform in 1991 and it was incorporated into its 1992 Constitution; however, in April of that same year the Fujimori coup represented a backward step towards civilian-military authoritarianism; the judicial reform persisted even if it was meaningless in practice for the real independence of the judicial branch. Mexico is once more an odd case. The judicial reform occurred alongside the transition process,12 but the question of how independent the judiciary really became is quite another matter (see chapter 4). Ecuador and

Table 3.1  Concurrence of Democratic Transition and Judicial Reforms in Latin America Country

Transition to Democracy

Judicial Reform

Difference in Years

Argentina

1983

    1992

 9

Bolivia

1982

    1994

12

Brazil

1985

    1988(c)

 4

Colombia

1958

    1991(c)

33

Costa Rica

1949

—

—

Chile

1990

    1994

 4

Ecuador

1984

    1993(c)

 9

Mexico

2000

    1994

–6

Paraguay

1989

    1992(c)

 3

Peru

1980

    1991(c)

11

Uruguay

1985

    1989

 4

Venezuela

1959

    1998(c)

39

(c) Indicates that the judicial reform is included as part of a new Constitution.

Judicial Reforms in Latin America  59 Bolivia have implemented subsequent reforms to their judicial systems after the first reform indicated in Table 3.1. Despite some differences, the similar timing in the occurrence of the judicial reforms in these countries is striking, running from 1989 to 1998. Even more striking is the similar content of the reforms: introduction of a professional management of courts by a Judicial Council (an Italian and posttransitional Spanish institution that has proved to very effective at dealing with the administrative matters of the courts and the appointment of judges based of their merits), modification of the procedure for appointing judges, modification of term tenures, introduction of oral procedures and alternative methods for conflict resolution in some cases, a fixed percentage of the national budget dedicated to the judiciary in some other cases, amongst the most salient features.13 The Contents of Judicial Reforms The first aspect of the trend in judicial reform has been the modification of terms and appointment procedures for judges. Due to the continual dissatisfaction with the judicial systems, Latin American reformers have usually blamed the way that judges are appointed, as well as their constitutional terms, as a core part of the problem of the lack of independence and inefficiency of the courts. Surprising as it may be—considering that any curtailing of judges’ tenure can be easily used as an excuse to act against the independence of the judiciary and lower courts—, this aspect of the judicial reforms has passed virtually unquestioned by Congress or the media. Moreover, the terms of the judges’ tenure has been shortened—not lengthened— in Colombia and Mexico, but extended in Ecuador and Paraguay, from 4 and 5 years before the reforms (coincidental with presidential term in both cases) to 6 years in Ecuador and life tenure in Paraguay.14 The Venezuelan 1999 Constitution extended tenure from 10 to 12 years for Supreme Court justices. Table 3.2 depicts the tenures for SC justices before and after the judicial reforms. On the other hand, the new appointment procedures have tended to lessen the influence of the executive over the nomination of SC justices. There are two ways this has been done: a) by leaving the whole appointment process in the hands of the National Assembly or b) by giving a stake in the judges’ selection process to the Senate, the lower chamber or the whole Congress, and sometimes to the judiciary itself. The only three countries of the region where the National Assembly has had complete responsibility over the appointment procedure—with no intervention from the executive whatsoever—have been Costa Rica, Venezuela and post-transitional Uruguay.15 In all other cases, except for Peru, the judicial reform trend has resulted in the Legislature’s increased involvement in the process, either by selecting the judges from a list produced by the executive (sometimes along with the

60  The Unfinished Transition to Democracy in Latin America Table 3.2  Security of Tenure for Supreme Court Justices Country

Tenure Before Judicial Reform

Year of Judicial Reform

Tenure After Judicial Reform

Argentina

   Life

1992

  Life

Bolivia

   10 yrs

1994

  10 yrs.

Brazil

   Life

1988

  Life

Colombia

   Life

1991

  8 yrs.

Costa Rica

   8 yrs

—

  8 yrs.

Chile

   Life

1994

  Life

Ecuador

   4 yrs

1993

  6 yrs.

Mexico

   Life

1994

  15 yrs.

Paraguay

   5 yrs.

1992

  Life

Peru

   Life

1991

  No security

Uruguay

   10 yrs

1989

  10 yrs.

Venezuela

   10 yrs

1999

  12 yrs.

Sources: Domingo 1994: 18; Dakolias 1993: 17; Rico and Salas 1990: 28. Bold print indicates changes in justices’ tenure.

judiciary) or by producing a list (again, sometimes along with the judiciary) from which the executive would make the final selection. Table 3.3 depicts the changes in the SC judges’ appointment procedure.16 Another central measure in the judicial reforms has been the alteration of the number of members of the bench, sometimes along with the creation of a Constitutional Court or a Constitutional Tribunal that operates independently of the Supreme Court. The general trend has been to increase the number of the members of the bench, except for the case of Mexico, where they were halved. Usually, the appointment procedure for the members of the Constitutional Court or Tribunal is the same as that followed for the appointment of SC justices. Table 3.4 shows the changes in the number of Supreme Court members and whether a Constitutional Court is in place Before the judicial reforms, a repeatedly reported problem was that judges did not have enough time to administer justice because they were burdened by onerous administrative duties.17 The creation of Judicial Councils was intended to remove administrative responsibilities and decisions from SC justices, making room for a professional and competent management of the courts (Shihata 1995: 223–4). Judicial Councils are also responsible for

Judicial Reforms in Latin America  61 Table 3.3  Formal Appointment Procedure for SC Justices Appointment Procedure Before Judicial Reform

Year of Judicial Reform

Appointment Procedure After Judicial Reform

Argentina

President (Congress approval)

1992

Presidential Agreement with the Senate

Bolivia

President, (Congress approval)

1994

2/3 Congress from Judicial Council’s list

Brazil

President with Senate approval

1988

Senate from a President’s list

Colombia

President (Congress approval)

1991

Supreme Court from Judicial Council’s list

Costa Rica

Congress from SC’s list

—

Congress from Supreme Courts’ list

Chile

President from SC’s list

1994

President, from Supreme Court’s list, 2/3 Senate approves

Ecuador

Congress

1993

Congress from President’s and Judicial Council’s proposals

Mexico

President with Senate approval

1994

Congress, from President’s list

Paraguay

President

1992

Senate, in agreement with the executive, from Judicial Council’s list

Peru

President (Congress approval)

1991

President

Uruguay

Council of the Nation, From Executive’s list.

1989

Congress

Venezuela

Congress

1999

Congress

Sources: Agrícola 1985: 52; Bogarin 2000: 18; Dakolias 1993:8, Domingo 1993: 130–1; Ortiz-Alvarez and Lejarza 1997; Popkin 2002: 100–132; UNDP 1998: 58; UNDP 2004:80; Vargas and Duce 2000:5.

a) the development of policies and plans for the judiciary, b) the judicial career—by means of organizing the training system of judges and through more transparent appointment procedures for lower court judges—, and c) judicial discipline by means of issuing clear disciplinary policies for dealing with judges’ misconduct (Page 1995: 56; Ungar 2002: 171). The Judicial Councils in Latin America were modeled after the 1974 Italian Judicial Council and the Spanish version created in 1978. They are called Consejo

62  The Unfinished Transition to Democracy in Latin America Table 3.4  Number of Supreme Court Justices and Existence of Constitutional Tribunals Constitutional Court or Constitutional Tribunal

Country

Number of S.C. Judges Before the Judicial Reform

Number of S.C. Judges After the Judicial Reform

Difference

Argentina

 5

 9

  +4

Bolivia

12

12

—

    Yes (5)

Brazil

11

11

—

    Yes

Colombia

23

23

—

    Yes (9)

Costa Rica

22

22

—

    No

Chile

17

21

  +4

    Yes (7)

Ecuador

16

31

+15

    Yes (9)

Mexico

21

11

–10

    No

Paraguay

 9

 9

—

    No

Peru

30

32

  +2

Uruguay

 5

 5

—

    No

Venezuela

20

20

—

    Yes

    No

    Yes (7)

Sources: Ortiz-Alvarez and Lejarza 1997; Popkin 2002: 100–132; Ungar 2001: 127 & 153; Obando 2000: 4; UNDP 2004: 80–1. Numbers in brackets indicate number of members in Constitutional Courts or Tribunals.

Nacional de la Judicatura or Consejo Nacional de la Magistratura, and are usually headed by the Supreme Court chief judge. The overall tendency to adopt the Judicial Council institution is illustrated in Table 3.5. The creation of a Judicial Council was part of the judicial reforms of the 1990s in the cases of Argentina, Bolivia, Colombia, Ecuador, Mexico and Paraguay, while it was eliminated in the case of Venezuela.18 The Judicial Council was maintained in the judicial reforms of Brazil, Peru and Uruguay, and was added in 1993 to the Costa Rican judicial system. Chile, for its part, has never had a judicial council, which is usually pointed out as the origin of the lack of independence of the lower court judges within the Chilean judicial system.19 Sufficient resources for the judiciary as institutions, as well as a decent salary, guaranteed pension rights for judges, and financial autonomy to the judiciary are the most salient features of the financial independence of the judicial system. Otherwise, the judge in particular, or the members of the

Judicial Reforms in Latin America  63 Table 3.5  Judicial Council Formation in Latin America Country

Legislated

Formed

Number of Members

Argentina

1994

1998

20

Bolivia

1994

1998

 5

Brazil

1977

1979

 5

Colombia

1981

1991

13

Costa Rica

1989

1993

 5

—

—

—

Ecuador

1992

1998

 8

Mexico

1995

1996

 7

Paraguay

1992

—

 8

Peru

1969

1981

 7

Uruguay

1981

1981

 8

Venezuela

1969

1981

Eliminated, 1998.

Chile

Source: Adapted from Ungar 2002: 170 & USAID 2002: 131. Italicized numbers indicate the legislation, formation or elimination of judicial councils as part of the 1990s judicial reform trend.

bench in general, can be subject to undue influences from the executive in deciding cases. Which is why, in recent years it has been common to dedicate a fixed percentage of the national budget to the judiciary. Some Latin American countries have even included it as part of their constitution or laws: Argentina (3.5%), Costa Rica (6%), Bolivia (3%), Ecuador (2.5%), Paraguay (3%), Peru (2%) and Venezuela (3%). Even if in practice the resources actually received by the judiciary are substantially inferior to these published levels, the tendency is to specify a clear reference to the amount of the resources that must be dedicated to the judicial system. It has also been pointed out that this is not a perfect solution to the precarious conditions of the judiciary in Latin America. However it sets standards of ideal funding that are well above the average level of resources formerly allocated to the judiciary—below 1% of the national budget for most cases. Regarding the salaries received by judges, there are great differences depending on status: whether the judge is assigned to a national or local court, or to higher or lower tribunals. In the case of SC justices, the tendency has been to dedicate a good level of income in order to foster judicial independence.20 However, the incomes of local and lower court judges are not

64  The Unfinished Transition to Democracy in Latin America as well endowed. Also, the salaries of public defendants and peace judges (jueces de paz) are rather low, leaving the posts to law students or inexperienced lawyers and even laymen, as more talented lawyers are attracted by the higher salaries paid elsewhere in the profession. Some other aspects relating to retirement pensions for judges, or the index linking of salaries to common inflationary economic conditions, require further refinements though (see chapter 8). The next important aspect in the general trend of judicial reform is the modification of proceedings during the judicial process. In particular, the introduction of oral procedures and Alternative Dispute Resolution mechanisms (ADR)—arbitration, mediation and friendly settlements—have proved to be controversial but quite effective in tackling their purpose: to speed up trials and to help to free up the judicial apparatus. However, much resistance to these changes has come from the judicial system itself, that tend to see in the ADR mechanisms and in oral procedures a danger to the Latin American judicial tradition. This tradition arose in the Civil Law system of continental Europe (from the Napoleonic Civil Code), where inquisitorial and almost exclusively written proceedings used to be followed in the prosecution of cases: crimes can be prosecuted by the public ministry de oficio (with or without a plea or complaining part), and based mainly on written files.21This is radically different from the Common Law tradition followed in the United Kingdom and the United States of America, where oral proceedings are substantial to adversarial systems—where there is always a plaintiff or prosecutor and a defendant in every trial. In a few of the judicial reforms—and following the example of continental Europe in recent decades22—a combination of written and oral elements have tended to replace the written proceedings previously found in Latin American judicial systems. This is the case in the Uruguayan General Code of Procedure 1989 and in Argentina during the 1990s. For its part, the adoption of ADR mechanisms has alleviated to some extent the backlog of cases in Argentina, Bolivia, Chile, Paraguay, Peru and Uruguay (Rowat et al 1995: 86). However, this is still huge in most Latin American systems (see table 3.6), which is a revealing indicator of the poor mechanical efficiency of courts.23 Some other aspects of judicial reform have included new training systems for judicial personnel (in some of them, a judicial career dependant on the Judicial Council has also been organized) and the creation of a Ministry of Justice instead of a General Attorney in Argentina and Peru.24 The modification of Penal and Commercial laws in most countries of the sample, and the creation of Ombudsmen offices or Defensorías del pueblo in some cases, which are mainly dedicated to investigating abuses by the police, prisons systems and the judiciary. These offices were established in Argentina (1993), Bolivia (1994), Colombia (1991), Ecuador (1998), Paraguay (1992), Peru (1993) and Venezuela (1999) (Ungar, 2002: 37–8; UNDP 2004: 86). In Mexico, the National Human Rights Commission was created in 1990, and it was included in the Constitution in 1992; a system of state human rights

Judicial Reforms in Latin America  65 commissions has been established since then.25 In Brazil, the public ministry has the same functions as the defensorías in other countries, while neither Chile nor Uruguay have defensorías (UNDP 2004: 86). The common problem with these offices is that they can only issue non compulsory recommendations. Even if they expose faults to the media and put some pressure over government officials, they are easily ignored by different departments and organs of the executive especially in politically relevant cases. A General Evaluation of Trends in Judicial Reform The fundamental objective of the judicial reforms in Latin America has been “to foster the administration of justice within a democratic society.” (Rico and Salas 1990:47) The outcome has also been a great level of action to engage in wide ranging reforms, targeting mainly the mechanical aspects of the administration of justice. In the aspects concerning the appointment of judge procedures and the security of tenure, the advances are less impressive. This is because the very reforms can be suspected of having undermined central aspects of judicial independence, especially concerning the removal of judges (since judges are dismissed or the whole bench reshuffled, while security of tenure has not been extended to lifetime in most countries, and even shortened in the case of Mexico). This indicates that there may still be a considerable level of undue influence by the executive over the judiciary. The increase of budget allocation to the judiciaries throughout the region is positive in principle, but the gap between the stated and the actual amount of financial resources actually directed to the judicial systems is still a question of some concern. Chapter 4 is dedicated to a more concise exploration of the independence of the judiciary in Latin America during the 1990s. The creation of judicial councils is also a good step forward in the direction of guaranteeing a higher degree of impartiality in the court system, as the appointment of lower court judges, the organization of a judicial career and the application of disciplinary measures are administered by a collegiate organ, rather than by the executive. However, in most cases there are shortcomings that leave the door open for executive influence over the judicial system, starting with the design itself of the appointment procedures for the Judicial Council members. In general terms, the appointment procedure is still subject to influence from the executive or the legislative, resulting in a situation where most are still “subject to the vagaries of politics and corruption—the very things they are designed to root out.” (Ungar 2002: 184) Even if the creation of judicial councils itself is a recognition of the weaknesses of the judicial system; the institution has not yet worked according to the high expectations created. For example, the new system for appointing lower court judges represents a significant advance from the previous system

66  The Unfinished Transition to Democracy in Latin America dominated by the executive, and some countries, such as Argentina and Bolivia, have enacted laws transferring judicial governance to their judicial councils. Nevertheless, the judicial councils are seen as a huge new bureaucracy that does not seem to be particularly efficient. As Popkin has stated: “In practice, judicial councils have often reflected the same politicization they were designed to help reduce, created new bureaucracies, and generally failed to live up to expectations. Nonetheless, councils have helped to diversify the input into judicial selection and, in most cases, increased the likelihood that professional qualifications will be taken into account.” (Popkin 2002: 105) Concerning the impact of the judicial reforms over the efficiency of the judicial systems, the results are mixed but generally not very optimistic. In some cases (Bolivia and Venezuela) most of the reforms had not yet been enacted by the year 2000, while in other cases central aspects of the new rules—regarding permanent appointments in the case of Peru, and new appointment procedures in the case of Mexico—were also still to be implemented. In the other cases, the most striking advances of the judicial reforms included the introduction of oral procedures in trials, and ADR mechanisms (friendly settlements, mediation and arbitration) in effect redirected a number of cases that otherwise would have ended up in the formal court system. This somewhat alleviates the backlog of cases—which is extremely high in certain countries, i.e. Brazil, with 50 million cases (Prillaman, 2001:90)—, but its effects are null when the nature of cases—essentially political or rights protective—do not accept negotiation practices, but require clear judicial decisions. Table 3.6 illustrates the case backlog in the supreme courts and the whole judicial system for various years in the 1990s. See chapter 8 for a more detailed analysis of the inefficiencies still present in the judicial systems of these countries. However, by far the least successful of the measures contained in the judicial reforms have been the new provisions for public defense systems, which continue to be under-staffed, under-funded and only attractive to law students or lawyers with very little experience. The low salaries found in the profession are not the best incentive for seeking the enforcement of the full rights and legal resources of the defendants. Some of the judicial reforms and the internationally sponsored programs have addressed this problem, but no improvement has been registered so far. Instances such as Defensores del Pueblo and Ombudsmen agencies tend to investigate cases and to recommend corrections to the judicial process, which is not the same as a proper public defense system but indeed another welcomed resource for filling the gap of legal representation for marginalized sectors. However, the absence of a functional public defense system in fact means that millions of citizens are virtually defenseless and deprived of justice, especially when confronting the use of the judicial apparatus by local bosses, businessmen

Judicial Reforms in Latin America  67 Table 3.6  Case Backlog in Supreme Court and the Judicial System26 Supreme Court Case Backlog Argentina

  300,000 in 1983   600,000 in 1989 1,200,000 in 1993

Brazil

    35,000 in 1996

Colombia

N.A.

Judicial System Case Backlog N.A.

50,000,000 in 1993   3,800,000 in 1992   2,400,000 in 1994

Costa Rica

     1,806 in 1990      4,235 in 1992

N.A.

Ecuador

    12,000 in 1992

   500,000 in 1992

Mexico

     1,300 in 1997

  1,000,000 each year

Peru

    28,000 in 1993

   500,000 in 1993

Venezuela

     7,000 each year

N.A.

and politicians in many regions and parts of Latin America (Ungar 2002: 37–8, UNDP 2004:86). Conclusions The judicial reform trend in Latin America during the 1990s is recognizable as part of the reform of the state process, within a context of democratization and economic reform. The actors that made the wave of judicial reforms possible are: a) sectors of the society asking for a better judicial service, b) political actors seeking greater legitimacy and better conditions for attracting foreign investment, and c) international agencies that have paid more attention than ever to the institutions that enforce the rule of law. However, judicial reformers should be conscious of the shortcomings that in practice have resulted from previous experiences. International donors also need to coordinate their efforts, while the society should be informed of the actual reach of the new measures and the potential significance that a functional judiciary can have for a liberal democratic polity. The judicial reforms have been somewhat effective in implementing improvements to mechanical aspects of the judicial work: higher budgets, better salaries for high court judges, training programs for judges and a judicial career, installation of modern equipment, introduction of oral proceedings and alternative dispute resolution mechanisms. The reforms have also

68  The Unfinished Transition to Democracy in Latin America been accompanied by the creation of ombudsmen offices and the mobilization of social sectors and NGOs supporting the new procedures and norms. Regarding the efficiency of the court system, the evidence suggests that the capacity of courts to deal with cases has not improved and case backlog figures are still significant and even huge in some countries. The positive effects of the judicial reforms over the independence, impartiality and efficiency of the court system are yet to be proven. Low levels of trust in the judiciary throughout the region do not seem to go in tandem with the judicial reforms. This may be due to the persistent weakness of the institutions needed for democracy, including judicial power. In some cases, there is the perception that justice only protects the interests of the powerful and the wealthy, while the incapacity of the judicial power to solve widely known cases may affect its image among the public. Another problem is the disenchantment of the population due to higher expectations created before the judicial reforms (Popkin 2004:4). Most importantly, even after judicial reforms, judiciaries and judicial systems are not yet free from undue interference by the executive. Judicial reforms are still lacking a long lasting effect in order to contribute decisively in the democratic consolidation process. Public distrust of the judicial system is clear proof that the judicial apparatus seems poor and slow for most sectors of the population: the demos of the electoral democracies is still aspiring to have a functional judicial system, capable of enforcing in all cases the rule of law. The next chapter will further explore to what extent Latin American judiciaries conform to international standards of judicial independence, especially in aspects of security of tenure, financial autonomy and the immovability of judges.

4 Assessing Judicial Independence in Latin America During the 1990s

As was shown in the previous chapter, transitions to democracy in Latin America during the 1980s and 1990s were accompanied by a general trend of reform within the judicial branch. Ostensibly, the judicial reforms in Latin America targeted, in the first instance, the legendary lack of judicial independence. This chapter explores the extent to which judicial reforms have contributed to more independent judiciaries in the region. The first three sections revisit the theory of judicial independence applied to Latin America, while the following sections seek to assess the independence of the judicial branch, particularly from the executive, in the twelve countries considered (Mexico, Costa Rica and the ten countries of South America) during the 1990s. In so doing, it explores three main areas of external independence of the judiciary1: the tenure of judges, the appointment of judges’ procedure and the financial independence of the judicial branch. The final section puts forward a comparative assessment of judicial independence, emphasizing the uneven nature of the judicial reforms as part of the general process of democratic consolidation in Latin America. The Contemporary Debate on Judicial Independence Judicial independence is generally considered as a requirement for a higher value: impartiality (Popkin 2004:1; Fiss 1997). In a liberal democracy, judicial independence is the most striking feature of a court system free of undue influences from powerful or wealthy actors. The judicial branch is in a favorable political situation to check and balance the other branches of government, by bringing them to abide by the law. Judicial independence is also usually seen as a guarantee against arbitrary government, as the autonomy of the judicial branch works for the distribution of power in the political system, and dispersed power incubates the rule of law in the sense that “no group becomes so strong as to dominate the others.” (Maravall and Przeworski 2003:4) When judicial independence is not guaranteed, powerful actors tend to use abusive interpretations of the law to oppress segments

70  The Unfinished Transition to Democracy in Latin America of society, to criminalize political adversaries, or to rule by whim or convenience as an arbitrary and uneven application of rules that are commonly associated with the political situation in Latin America. The lack of true judicial independence is also reflected in the level of public trust in judicial institutions, which is as low as just 25% in some Latin American countries (Popkin 2004:4). Most authors on the subject (Camp 2002, Russell and O’Brien 2001, Rico and Salas 1990, Maravall and Przeworski 2003) agree with Shetreet and Deschenes that “judicial independence is a sine qua non in a democratic libertarian society.” (Shetreet and Deschenes 1985: 5) The Universal Declaration on the Independence of Justice, issued on June 1983 in Montreal, Canada, adopted a modern concept of judicial independence, that can no longer be confined to the individual judge—as was formerly the case—but to the collective independence of the judiciary as a whole. From this starting point, the concepts introduced as minimum standards for judicial independence include the need for collective external and internal independence (from the executive and the legislative, as well as from any other agency e.g. the military, and the independence of lower strata judges from more senior judges in their rulings), administrative independence, restriction of executive powers over the judiciary, and the principle that the judiciary should fairly reflect its society (Shetreet and Deschenes 1985: 393–6). Soon afterwards, the General Assembly of the UN adopted the instrument Basic Principles on the Independence of the Judiciary, issued in Milan, Italy in 1985 and endorsed by resolutions 40/32 of November and 40/146 of December 1985 (see Appendix 1). As pointed out by L.C. Keith, these standards do not carry the force of law, but the UN has held them forth as a model as they “represent a substantial degree of global consensus on what judicial independence is or should be.” (Camp 2002: 195–6) According to these instruments, violations of judicial independence occur in the following cases: 1. When there are any forms of interference in the personal independence of the judge. 2. When the executive or the legislature affect the judicial budget by any means. 3. When the judge can be punished by means of transfer or removal. 4. By closing down the courts. 5. By pre-empting or frustrating judicial decisions. 6. When it is possible to influence legal proceedings, and 7. By bureaucratic pressures on the judiciary. To simply affirm, in the Constitution, that judicial independence will be respected, is considered “the weakest form of constitutional guarantee of judicial independence.” (Shetreet and Deschenes 1985: 611) Real guarantees of judicial independence are a range of measures including life tenure,

Assessing Judicial Independence in Latin America During the 1990s  71 immovability of judges, decent salaries and pension schemes for justices and judges, clear provisions for disciplinary proceedings, and similarly for appointment and removal procedures, and security of tenure. The principles for judicial independence contained in the above instruments can be summarized as follows:

1. No Ad hoc tribunals. 2. No diversion of cases to a different tribunal. 3. No retrospective legislation. 4. No selection of judges prior to case assignation. 5. Decision making independence for judges. 6. Respect of government officials for judicial decisions. 7. Judges must not be part of the civil service. 8. Any change of term not to be applied to current judges. 9. No diminution of judges’ salaries or conditions.

The judiciary requires also a considerable amount of public confidence, as its only source of real power, apart from the constitutional recognition of its existence. The judiciary is extremely vulnerable due to its dependence on other branches of government for funding, material support, enforcement and defense. The judiciary has no influence over the armed forces (unlike the executive) or budget allocation (unlike the legislature), thus its only source of power is judgment, “the habit or prestige of justice” in Alexander Hamilton’s words (Federalist #78), or “the power of public opinion” according to Alexis De Tocqueville in Democracy in America. This is why “the confidence of the people in the judiciary is the ultimate reliance of the Court as an institution.” (Stepen 1985: 533–4) In the contemporary debate about judicial independence, there is also the contested nature of this topic, or a general worry about the “right degree of independence” of the judiciary. In particular, the judicial branch can manifest erratic and improper behavior when unchecked by other branches of government. For example, nepotism, arbitrary dispositions towards lower court judges and opacity of finances have been reported in Brazil after 1988 (Prillaman 2001). This addresses the problem of “who watches the watchmen.” This is usually resolved through accountability procedures carried out by the other branches, especially the legislature (Cappelletti 1983). In this respect, Fiss identifies the fragile equilibrium that the US Supreme Court has successfully preserved with the executive and the legislature, in such a way that instead of independence, he prefers to call the relation the judiciary has developed with the other branches ‘interdependence’ (Fiss 1993). Similarly, Schor points out that judicial independence must be optimized, not maximized, “for the judiciary to play a constructive role in nation building, it must generally cooperate with rather than contest the political branches.” (Schor 2002:14). In any event, even if in Latin America the lack of judicial independence is a more urgent problem than that of the “right degree of

72  The Unfinished Transition to Democracy in Latin America independence” judicial accountability must be taken seriously into account for the construction of the rule of law in the post-transition era. The Limited Judicial Independence in Latin America In Latin America, there are further factors that must be considered when assessing the independence of the Supreme Courts (Verner 1984: 458–477):

1. A long tradition of executive dominance, 2. a history of constant political instability, 3. the nature of civil law systems and a legalistic approach to laws,2 4. the structure and process of judicial systems, 5. the lack of a popular power base, 6. inconsistent appointment, tenure and impeachment provisions, 7. limitation of judicial powers to declare legislative or executive acts unconstitutional.

Up to the 1990s, the judicial sector was a neglected area lacking modernization and reform in the region, and was widely defined by most authors as weak, lacking in infrastructure and resources, and frequently associated with corruption, inefficiency and over bureaucratization. Moreover, the common impression of observers and scholars suggested that few national courts in Latin America were truly independent deciding cases according to the law and the merits of the case (Domingo 1998, Rico and Salas 1990, Verner 1984). There is a long tradition of executive dominance over the judiciary in Latin America dating from the colonial Habsburg period. This tendency was reinforced after political independence. In spite of the adoption of liberal constitutions that recognized the doctrine of separation of powers, there were no adequate institutional mechanisms for checking the executive in practice. The absence of any real independence of the judiciary was a consequence of the struggle between Liberal and Conservative elites during the nineteenth century, and was also a feature of the populist and authoritarian regimes of the twentieth century.3 As a result, Latin America does not have a tradition of judicial independence, except for the cases of Costa Rica, Chile and Uruguay. And even the latter two countries suffered the impact of a new authoritarian state during the 1970s, which negated this tradition for more that two decades. During the twentieth century, the entire SC was dismissed in Argentina (six times), Bolivia, Brazil, Cuba, El Salvador, Honduras, Panama, Peru, and the Dominican Republic. Subjection of the supreme courts to military coups took place in Chile and Argentina, while the independence of the judiciary was abolished in Cuba (1973), Panama (1968) and Uruguay (1977).

Assessing Judicial Independence in Latin America During the 1990s  73 According to most observers there was little or no effort by the judiciaries to investigate human rights violations in Bolivia, Brazil, El Salvador, Guatemala, Honduras and Uruguay up to 1997 (Rico 1997: 182–3). In 1975, Keith Rosenn classified the Latin American judiciaries as follows: Independent: Costa Rica Semi independent (some interference of the executive): Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru and Venezuela. Total dependence: Guatemala, Honduras, Panama, Chile,4 Paraguay and Uruguay. (Rosenn 1987: 8–12; Rico and Salas 1990:19) Kenneth Johnson proposed a similar classification in 1976, but pointed out that Uruguay and Chile had fully autonomous judiciaries prior to the military coups in 1973: Independent-Activist: Costa Rica. Attenuated-Activist: Chile and Uruguay. Stable-Reactive: Mexico. Reactive-Compliant: Argentina, Brazil, Colombia, Venezuela. Minimalist: Peru, Ecuador, Bolivia, Guatemala, Honduras, El Salvador, Panama. Personalist: Paraguay, Haití, Cuba, Dominican Republic, Nicaragua (Verner 1984: 478). The last classification also has a three-level approach, ranging from total independence of the Supreme Court, some kind of semi-independence with four variants (attenuated, reactive, compliant or minimalist) and total dependence from the executive, in such a strong way that it is referred to as “personalist.” In both classifications, Costa Rica is the most independent judiciary in Latin America, whilst the Paraguayan judiciary is one of the most dependent, due to the subjection of the court to Dictator Alfredo Stroessner under an authoritarian regime that ran from 1954 to 1989. Given that Chile and Uruguay had an independent judiciary for a number of decades, Johnson classified them as “attenuated-activist” just to address the fully autonomous character of the bench prior to the military coups. As for the twelve cases of our sample, the comparison is shown in Table 4.1. In the next sections, I will refer to three main areas of judicial independence in order to assess the autonomy of the Supreme Courts in Mexico, Costa Rica and South America during the post transition or liberalization phase of the 1990s: a) appointment procedure for judges, b) guarantees of tenure and immovability of judges, c) financial independence. The purpose is to identify patterns and differences in degrees of judicial independence in the region, within a democratization context which is simultaneous with judicial reforms.

74  The Unfinished Transition to Democracy in Latin America Table 4.1  Classifications of Judiciaries in the 1970s Rosenn 1975

Johnson 1976

Independent

Costa Rica

Costa Rica

Semi-independent (Some interference of the executive)

Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru and Venezuela

Chile, Uruguay, Mexico, Argentina, Brazil, Colombia, Vene­ zuela, Peru, Ecuador, Bolivia

Dependent

Paraguay, Chile, Uruguay

Paraguay

Procedures for Appointing SC Justices The procedure followed for selecting SC justices within a political system is considered crucial for the independence of the judiciary. This is so because the selection of judges, taking into account their personalities, political orientation and attitudes toward the application of the law, create the unavoidable bias of the whole institution (Barnum 1993: 225–9). The appointment procedure can also give the executive an opportunity to fill the posts with sympathetic judges who will not overrule the policies of the government or be a nuisance in politically important cases. This factor is even more important to take into account in a region where civilian and military executives have tended to suppress, nullify or bypass checks and balances from the legislative and the judiciary. Not surprisingly, to tailor the supreme court became the common route for Latin American executive officials to start exercising undue influence over the bench (Popkin 2004:5). There are three main procedures for appointing judges in Latin America: a) by exclusive decision of the executive, b) by means of a list of candidates produced by the executive, the legislature, the Supreme Court or the judicial council, subject to approval by a different branch, and c) by exclusive decision of the legislature. Historically, the first method has prevailed in most Latin American countries since independence. However, there have been rare cases where the executive has been excluded from the selection procedure. In these cases the legislature has had exclusive authority to select the members of the bench: Mexico from 1917 to 1928, Costa Rica since 1949, Uruguay from 1934 to 1973, and again from 1985 to the present day, and Venezuela since 1977 (Cossio 2001: 89; Rico and Salas 1990:19; Verner 1984: 478).5 Most of the judicial reforms during the 1990s included new appointment procedures for selecting the members of the supreme courts, in order to reduce the influence of the executive over the bench. The reforms have tended to give the legislature or the judicial council a stake in the appointment process, by means of either proposing or approving lists of candidates to SC magistrados.6 But as “the executive rarely loses its determination to

Assessing Judicial Independence in Latin America During the 1990s  75 stock the judiciary with friendly judges” (Ungar, 2002:143), the possibility to reshuffle and tailor the SC has been a constant factor even in the design of all the judicial reforms itself in Latin America. In most cases the judicial reforms have meant dismissing the old court and forming a brand new one. In Argentina, as part of the judicial reform in 1991, the members of the SC increased from five to nine justices. President Menem himself made five appointments, including two Peronist judges and two ex partners from his solicitor’s practice. This allowed him an automatic majority willing to validate executive decisions. This sympathetic judiciary remained silent when in just four years Menem issued 308 “Decrees of Necessity and Urgency” bypassing opposition from legislature by these means. The judiciary also exonerated 100 government officials accused of corruption, after the scandal of 29 resignations by senior administrative officials (Abraminovich 2000: 2; Prillaman 2000:120–5; De Riz 1996:150). In the Mexican case, the nature of a dominant party rule included the judiciary in its sphere of patronage and political networks. Despite the life tenure granted to SC justices, from the 1940s every Mexican president has appointed at least 11 of the 21 justices for each term, with the exception of only Adolfo Ruiz Cortines who appointed just five.7 And of course, in Mexico: “[N]o judge was likely to be elevated to the bench who was not a member in good standing of the PRI (. . .) and judicial decisions conspicuously incompatible with the policy positions supported by the PRI and its allied major interest groups would have no independent power base to sustain them and could not maintain themselves.” (Ungar 2002:143) In 1994 a judicial reform was implemented from above, reducing the number of the SC members to 11. Actually, the executive reshuffled the court, nominating all of the justices, even if this time the National Congress approved the candidates. Since then, the judiciary has shown a higher level of activism, but not equivalent yet to greater political autonomy (Domingo 1997:13). During the 1990s, the SC continued to show a relative independence, in which about one third of all writs of amparo (rights protection lawsuits) were ruled against the executive, but certainly not in politically relevant cases (Domingo 1994:19).8 For example, the most significant decision of the 1990s, about geometrical compound interest for mortgages after the 1994 peso crisis, was widely perceived to have been decided more for political and financial reasons than on the legal merits of the case.9 The pressure on the SC from the executive, which was implementing a bailout of the banking system at any cost, proved to be unbearable (Castro 1998). An interesting result of the 1994 judicial reform has been that the new president of Mexico in 2000, Vicente Fox, who is a member of the Partido Acción Nacional (PAN), encountered a SC which is not possible to influence by

76  The Unfinished Transition to Democracy in Latin America means of appointment procedures. He was only able to propose replacements for four of the SC justices: two in 2003 and another two in 2006 (Cossio 2001, 101). The Paraguayan case shows the extent to which constitutional dispositions can be curbed to allow political leeway to the government. In January 1994, an Executive-Legislative Democratic Compromise was issued to find consensus concerning the members of the new Supreme Court and the Supreme Electoral Tribunal, both institutions recognized by the 1992 Constitution. Regardless, a later decree introduced a massive number of changes in the judiciary, in order to ensure a subservient court for the Colorado party government. In theory, the appointment procedure—where the executive and the Senate decide from a list produced by the Judicial Council—assures that four of the nine justices are identified with the opposition parties, another four are identified with the government while one will have an independent background. However, in practice, the Colorado party managed to incorporate the SC into its network of political control (Abente 1996:123–130). Table 4.2 shows the formal constitutional appointment procedure for SC justices, and the actual procedure followed in the appointment process. The creation of judicial councils has also been a common feature of the trend in judicial reform, in an attempt to generate a merit-based judicial career for promoting judges and, in the most ambitious cases, to participate in the process to nominate the members of the supreme courts. This has been the case in Bolivia, Ecuador, Paraguay and Venezuela. The principle is that an agency with the responsibility to guarantee the professional character of the judicial system will be more oriented to merit-based nominations of judges, hopefully changing the pattern of politically oriented nominations. In Bolivia, the Judicial Council (Consejo de la Magistratura) sends a list of candidates for approval by two thirds of the National Congress. In Ecuador, the lists are created by the Judicial Council, the president and the Supreme Court, while the Senate decides (Popkin 2002). In Venezuela, the Judicial Council is responsible for managing the judicial career, whilst the National Congress nominates the justices. However, the Venezuelan case clearly shows that despite the existence of the Judicial Council, nominations of judges resulted from negotiations between the two dominant parties (Acción Democrática and COPEI) from 1958 to 1999. Similar patterns are reported for the other countries where the judicial council has been part of the judges’ appointment procedure. If the executive can influence the composition of the Judicial Council, the original problem remains unsolved: the executive’s influence over the judiciary by means of the appointment procedure remains. As Mark Ungar has said: “Independent judicial functioning is a moving target. It is about knowing who can influence the judiciary and how and when they do so.” (Ungar 2002: 122)

Assessing Judicial Independence in Latin America During the 1990s  77 Table 4.2  Formal and Actual Appointment Procedures for SC Justices Appointment Procedure Before Judicial Reform

Appointment Procedure Before Judicial Reforms

Formal Terms

Actual Terms

Year of Judicial Reform

Appointment Procedure After Judicial Reform

Arg

President with Senate approval

President

1992

Presidential Agreement with the Senate

Bol

President, Congress approval

President

1994

2/3 Congress from Judicial Council’s list

Bra

President with Senate approval

Military Junta

1988

Senate from a President’s list

Col

President Congress approval

Liberal–Conservative parity in judicial branch

1991

Supreme Court from Judicial Council’s list

C.R.

Congress from SC’s list

Congress from SC’s list

—

Congress from SCs’ list

Ch

President from SC’s list

President

1994

President, from Supreme Court’s list, 2/3 Senate approves

Ec

Congress

President

1993

Congress from President’s and Judicial Council’s proposals

Mex

President with Senate approval

President

1994

Congress, from President’s list

Par

President

President

1992

Senate, in agreement with the executive, from Judicial Council’s list

Peru

President with Congress approval

President

1991

President

Ur

Council of the Nation, from Executive’s list.

Military Junta

1989

Congress

Ven

Congress

AD-COPEI Bipartisan negotiated appointments.

1999

Congress

Sources: Ortiz-Alvarez and Lejarza 1997; Popkin 2002: 100–132; UNDP 2004: 80; Vargas and Duce 2000:5; Domingo 1993: 130–1; Dakolias 1993: 8; Bogarin 2000: 18; Agrícola 1985: 52; UNDP 1998: 58.

78  The Unfinished Transition to Democracy in Latin America Tenure and Immovability of Judges The second area of judicial independence are the provisions, both written and in practice, about the tenure and immovability of judges. The Universal Declaration on the Independence of Justice (1983) states that judges of the bench should be appointed for life, with an obligatory retirement age of 75 years old, and should be removed only through the application of clear provisions for disciplinary proceedings. However, in Latin America the actual tenure of judges has been historically very short, due to the tendency of executives to reshuffle the supreme courts. Even recent judicial reforms have delivered negative outcomes in this respect. Instead of extending tenures, the reforms have tended to restrict them making the possibility of reappointment uncertain. After the wave of judicial reforms, only Argentina, Brazil, Chile and Paraguay maintained life tenures for SC justices. In Mexico, this disposition was removed in the 1994 judicial reform, reducing justices’ tenure to 15 years. All other countries in the sample have tenures ranging from 6 to 10 years, but most countries in practice show a pattern of even shorter terms for members of the bench. Considering that all countries, except Costa Rica, have recently undergone a judicial reform, it is worth noting that most have simply ignored the dispositions of the Basic Principles on the Independence of the Judiciary instrument (see appendix 1) concerning life tenure for justices. More striking still is that, in the past, judges have not been able to remain in the Supreme Court for life even in those countries where this constitutional provision has existed. The constant reshuffling of the judiciary in Argentina (8), Brazil (5), Mexico (6), Peru (5) and Venezuela (7) during the twentieth century simply made it impossible to allow credible guarantees of life tenure for judges on the bench. Without doubt, immovability of judges does make a huge difference to the outcome of how independent or dependent the judiciary is in relation to the executive in Latin America. This is particularly so when compared to advanced liberal democracies, where a reshuffle of the judiciary is an extraordinary event. So, immovability of judges can be considered a cornerstone of judicial independence. As Leonard King argues: “security of tenure is probably the most fundamental of the guarantees of judicial independence.” (King 1985: 411) The mechanisms by which justices are removed from the bench range from sacking, pressures to make individual judges renounce their posts, the “promotion” of individual judges to another position within the political network and by means of reshuffling the court. In Ecuador, for example, President León Febres Cordero mobilized military forces in 1985, in order to prevent recently nominated justices from taking their seats, thereby provoking the appointment of a brand new set of judges by the legislature. In 1987, eight Bolivian justices were suspended and tried after a confrontation with President Jaime Paz Zamora. The impeachment trial was never

Assessing Judicial Independence in Latin America During the 1990s  79 resolved, but after a political negotiation between the president and Congress, the eight accused justices returned to their seats.10 In Colombia, half the SC justices were killed during the retaking of the Palace of Justice after an M-19 guerrilla commando took it by force in November 1985 (Springer 1998; Tirado 1998: 116).11 After the Peruvian judicial reform in 1991, and included in the 1992 Constitution, Fujimori purged 13 of 30 judges from the Supreme Court along with 135 judges and prosecutors. A Judicial Council was created, but in practice it was controlled by the executive. If a judge or Supreme Court justice did not follow the executive’s instructions he or she was moved to another court, segregated or dismissed by the Council. Moreover, in 1997, Fujimori initiated the impeachment of three justices of the Constitutional Tribunal, which led to the resignation of the Tribunal’s president (Stokes1996: 64 n.6; Vega 1995:187; De la Jarra 2001; Dodson 2002: 211). The tendency to remove SC justices reflects the lack of real commitment of Latin American executives to judicial independence. And this was again the case during the wave of judicial reforms in the region. Taking advantage of public disapproval of the judicial system and responding to the demand from the economic elites for a reliable legal system within which to do business, Argentine President Carlos Menem went along with an extensive judicial reform in 1991, as part of the Reform of the State program. But the result was again another successful attack on the principle of judges’ immovability, by reshuffling the bench yet again. Moreover, even if life tenure of judges was maintained, in practice tenure remained uncertain for the justices due to the clientelistic network organized from the Ministry of Justice (Prillaman 2000: 120; Abraminovich 2000). In Mexico, the Supreme Court used to be just another example of employment prospects for those politically loyal to the PRI. 47% of the appointed justices proceeded from previous political positions, while justices had career objectives beyond the judiciary despite life tenure. In fact, the Mexican Supreme Court experienced a high turnover and desertion rate, and at least 26% moved on to new political positions: secretaries of state, governors, senators, attorney general, among other positions. This turnover clearly shows the low esteem that judges felt about being SC justice for life, and how pointless it was to oppose a political network that rewarded loyalty to the PRI regime (Domingo 1997: 5). The 1994 judicial reform ignored again the principle of immovability of judges and reshuffled the SC. However, since then the security of tenure has increased and been a more credible feature of the Mexican judiciary, in spite of the reduction in constitutional tenure to 15 years. Paradoxically, if fulfilled in practice, this tenure will still constitute a progress and might do more for the independence of the judiciary than the former lifetime tenure provision with its repeated replacement of SC justices.12 In contrast, Costa Rican SC justices have enjoyed virtual life tenure, even if the constitutional provision is for only eight years subject to renovation

80  The Unfinished Transition to Democracy in Latin America by at least two thirds of Congress. In practice, only in one case has a justice not been reappointed to the bench (Cruz 2000: 5; Rico and Salas 1990: 29). The prestige of the Supreme Court and the judicial system is one of the greatest assets in the Costa Rican democracy, and even if the judiciary has been recently involved in allegations of corruption and incompetence, it is not at the levels seen in South America. This explains why “with the exception of timid attempts, the political parties have not proposed a profound transformation of the organic structure of the Costa Rican judicial power.” (Gudmundson 1996: 85; Cruz 2000: 21) Financial Independence Maybe one of the best comparative indicators of judicial independence is the financial area: whether or not the judiciary has sufficient financial resources at its disposal to fulfill its duties, and most importantly, whether or not the judicial power can dispose of these as it wishes. Both factors are necessary for the financial independence of the Supreme Court: a decent allowance and the autonomy to administer its own resources. Otherwise, the executive or an executive-dominated-legislature can easily exert pressure on the bench, either by reducing the resources allocated to the judiciary, by just leaving unchanged the nominal financial amounts in a context of rampant inflation, by ignoring the payment and retirement requirements of judicial officials and judges, or by blocking the actual delivery of installments to the judicial branch through bureaucratic means. In fact, when the judiciary shows a degree of independence higher than expected by Latin American executives, a subtle way to reduce this independence is by restricting financial resources. The most relevant indicator of financial allowance to the judiciary is the percentage of the national budget destined to the judicial branch. Some countries have taken advice from international agencies to set a fixed percentage of the national budget to the judiciary. However, in practice this allowance is usually reduced by bureaucratic or political means. For example, in Argentina, although the 1990 Ley de Autarquia Judicial stated that the judicial branch should receive 3.5% of the budget, the law was suspended in 1991 for one year, it been argued that this expenditure would work against the economic stabilization policy. The law was eventually restored after a battle of decrees between the executive and acordadas (judicial orders) from the judiciary (San Martino 1996: 1272). In Ecuador, the Ministry of Finance has shown a remarkable ability to curtail the judicial budget by different administrative methods, such as allocating a portion of the foreign debt to the judiciary (Dakolias 1993: 12). In Paraguay, the SC president must still negotiate with the Treasury and lobby the Budget Commission in Congress, and even then some budget items already approved are not released by the executive on the grounds that there are insufficient resources (Popkin 2002:

Assessing Judicial Independence in Latin America During the 1990s  81 123). In the Peruvian case, the 1979 and 1993 Constitutions allocated 2% of the national budget to the judicial power, but the actual amount ranged between 0.5 to 1% (De la Jarra 2001). Great disparities were apparent between the amount of resources that were supposed to be directed to the court system and the slash of these budgets by administrative means, making the words in the constitutions merely good intention rather than a financial reality for the judiciaries in Latin America. It is more reliable, then, to take into account the reported allowances given to the judicial system in particular years in order to get a more realistic picture of the financial resources actually received by the judiciaries. This data is depicted in Figure 4.1. More important, perhaps, than the allowance the judiciary receives is what it can do with these resources to enforce the law. In this respect, it is striking to compare the allowance received by consolidated democracies, such as the United States (1.5% of the national budget in 1997), Denmark (1.5%) or Germany (0.9%). In these cases, a functional law enforcement apparatus probably allows even relatively lower budgets to the judiciary to deliver better results in terms of independence of the judiciary and law enforcement. But it is also worth noting that even 1% of their national budgets still represent massive resources compared to their Latin American counterparts. Besides, researchers have reported that even if inadequate budgets perpetuate the dependence of the judiciary, there is no correlation between efficiency of the judicial system and the size of the judiciary participation in the government budget (Buscaglia and Domingo 1997: 13). Complementary indirect indicators about the financial strength of the judicial branch are the number of judges per 100,000 inhabitants that can be hired, and the salaries of SC justices. This data is shown in Table 4.3.

5 4 3 2 1 0

ARG BOL BRA COL

CR

CHI

EC

MEX PAR PERU UR

VEN

Figure 4.1  Actual judicial budget as percentage of the national budget in Latin America 1990–2000. (Average of reported allocations.) Sources: See Table 4.3.

3.0

—

—

6.0

—

3.0

—

3.0

2.0

—

3.0

Bolivia

Brazil

Colombia

Costa Rica

Chile

Ecuador

Mexico

Paraguay

Peru

Uruguay

Venezuela

1.4

1.6

0.7

1.6

0.7

1.5

0.9

5.0

1.3

2.1

1.5

1.7

Resources Actually Received as % of National Budget

–1.6

—

–0.5

–1.4

—

–2.7

—

–1.0

—

—

–1.5

–1.8

Difference

  6.1

—

—

  7,650

  6.0 15.5

  4,000

  4,000 10.5

11.0

—

  4,000

  5.0   5.6

    Yes

  4,250

16.0

    No

    Yes

    No

    No

    No

    No

    Yes

    No

    Yes

    No

    No

Administrative Autonomy

—

  7.4

  4,000

10,800

  9.1   3.6

12,000

Salaries USD per Month SC Justices

11.1

Judges per 100,000 Inhabitants (2001)

Sources: UNDP 2004: 109; De la Jarra 2001; Domingo 1994: 17 n.37; Moncayo 1995: 105 n.2; Vargas and Duce 2000: 16; Mexico, Diario Oficial de la Federación 29/12/90, 24/12/91, 18/12/92, 30/12/93, 28/12/94, 23/12/93; Góngora 2001; Fruling 1993: 251; Rowat et al 1995; Ungar 2002.

3.5

Argentina

% of National Budget as Stated in Constitution or Laws

Table 4.3  Indicators of Financial Strength in Latin American Judicial Systems13

82  The Unfinished Transition to Democracy in Latin America

Assessing Judicial Independence in Latin America During the 1990s  83 In comparison, higher financial resources are not the only variable to explain the financial independence of the courts. The Brazilian case is clear in this sense: the second most independent judiciary has fewer judges per 100,000 inhabitants than any other country, while justices in Costa Rica are paid less than those in Argentina, Bolivia and Peru. On the other hand, the Costa Rican judiciary has by far the largest amount of resources as a percentage of the national budget. But the cases of Brazil, Chile and Uruguay are examples that with just 2% of the national budget or less, their posttransition judiciaries have been reported as the most independent in Latin America, just second to Costa Rica (Prillaman 2000). What appears to be of most importance for judicial independence is the combination of decent financial allocation (1 to 2% of the national budget) and financial autonomy in the management of these resources. As shown in the last column of Table 4.3, the four judiciaries with financial autonomy (Brazil, Costa Rica, Chile and Uruguay) are repeatedly reported as being the most independent of the region. This is evidence that when sufficient resources are under the judiciary’s control, the judicial branch is able to exhibit a more independent behavior. Along with financial autonomy, the fixing of salaries of the judges should be totally independent of the executive government as well; otherwise it would be “at least an incipient threat to judicial independence.” (King 1986: 411) The degree of autonomy allowed over the management of the resources is revealed as one of the most important features of an independent judiciary. Judicial Independence and Judicial Reform Even if most countries in the sample initiated in-depth judicial reforms within a context of democratization during the 1990s, the independence of the judiciary cannot claim to be a consequence of these reforms. Costa Rica is the only country to have established an effective and independent judiciary since 1949, and no further reform has been necessary to maintain this fortunate situation. Uruguay lost the traditional independence of its judiciary in 1973, and only after the transition to democracy in 1985 did the country recover the autonomy of the judicial power. Brazil is a unique case where judicial independence was obtained after the judicial reform, however it lacks any real counterbalance from the other branches of government and has not necessarily led to a more efficient judicial system (Prillaman 2000: 94; Santiso 2003).14 In all the other cases, the judicial reforms—some of them quite necessary indeed—did not provide sufficient conditions for a truly independent judiciary. As seen in chapter three, a common occurrence in most judicial reforms in Latin America has been the removal of all or most SC justices, completely ignoring the dispositions of the Basic Principles on the Independence of the Judiciary instrument:

84  The Unfinished Transition to Democracy in Latin America 11. “The term of office of the judges, their independence, security, adequate remuneration and conditions of service, pensions and the age of retirement shall be adequately secured by law. 12. “Judges, whether appointed or elected shall have guaranteed tenure until a mandatory retirement age or expiry of their term of office, where such exists.” (see Appendix 1) In fact, most judicial reforms in Latin America have been a means to reshuffle Supreme Courts, seeking judiciaries more sympathetic to the governments’ actions. In the twentieth century this was a common practice in Argentina, Bolivia, Brazil, Mexico, Peru and Venezuela. Actually, the political elites in Mexico during the 1920s, and Bolivia and Peru in the 1970s considered the judiciaries a conservative obstacle against obtaining the revolutionary goals they were engaged with, and so came the necessity of a reshuffle. In the 1990s, tailoring the court was clearly the purpose of the judicial reform in Argentina and Peru. In Mexico the reshuffling of the judiciary was supposed to be an honest means to increase the independence of the SC, only to show how little autonomous it was in the light of the highly politically important decision in 1998 to declare geometrical compound interests legal, backing the presidential banking system’s bailiff while condemning around 10 million debtors to paying substantially higher interests for their mortgages. The tendency of executives to reshuffle the judiciary is a very important fact explaining the lack of judicial independence in the region. This is more evident if we consider that the judicial independence tradition was initiated in England, with the Act of Settlement of 1701, by which judges were guaranteed to hold office subject to proper behavior (quamdiu se bene gesserint) (Casson and Scott 1985:148). In the United States, our main example of a presidential democracy, the Supreme Court has never been reshuffled. Just one serious attempt was made by F.D. Roosevelt when the judiciary overturned several key pieces of New Deal legislation and the president proposed to enlarge it to fifteen members in 1937; the plan was defeated by Senate and nothing happened in the end but a strong sensation of executive intrusion invaded the judicial institution at the time. Later on, most historians about the U.S. Supreme Court recognize that this attempt constituted a real danger to the independence of the judiciary that fortunately did not take place (Barnum 1993: 86; Burt 1993: 290–6; McCloskey 2000: 116–8). The instrument Basic Principles on the Independence of the Judiciary considers too, that judges should be in office up to retirement age (70 to 75 years old as is commonly the practice). After Mexico and Colombia shortened the tenure of SC justices to just eight and fifteen years in 1991 and 1994 respectively, the only countries now to have life tenure for justices are Argentina, Brazil, Chile and Paraguay. In all other cases, tenure ranges from six years (Ecuador) to ten years (Bolivia and Uruguay). During the 1990s only Brazil, Costa Rica and Chile actually fulfilled the immovability requirement (explicitly stated in the case of Brazil and Chile, but taken for granted

Assessing Judicial Independence in Latin America During the 1990s  85 in Costa Rica where the stated eight years tenure is renewed by two thirds of Congress). The judiciaries of Argentina and Mexico were reshuffled in 1994 followed by Paraguay in 1992, thus unable to produce a continuity of justices for the full period. The Uruguayan case is a curious one, as the judiciary only began to exist once again in 1985, with a stated tenure of ten years for SC justices. In 1997, the reform introduced the re-election of former SC justices after five years of their separation from the bench, up to the age of 70 years old. The Uruguayan SC was stable during the 1990s, but its composition has not been institutionally guaranteed for further periods. In fact a brand new court is due every ten years, even if former judges can be reappointed. The same problem applies for Bolivia, Colombia, Mexico and Venezuela, where new judiciaries are due every ten, eight, fifteen and nine years respectively, due to the limited tenure of their SC justices. However, during the 1990s the worst case was Peru, where the Fujimori regime removed magistrates at whim, in such a fashion that no guarantee of tenure was given at all (De la Jarra 2001). The creation of Judicial Councils (Consejo de la Magistratura o Consejo de la Judicatura) has been a positive step towards the internal independence of courts in Latin America. The judicial council takes responsibility for the administration of courts, appoints lower court judges on merit, manages the professional judicial career and the judicial academy and at times takes ultimate decisions when judges behave improperly. As well as taking administrative responsibilities away from the judicial branch, the council guarantees a system of promotion based on merit, which has been its most important contribution to the internal independence of justice. Chile is the case that stands out in Latin America, because a judicial council is not existent there (although the Venezuelan judicial council was only formed late in the 1990s). The exaggerated power that higher judges wield over lower courts judges is a detriment to the internal independence of justice in Chile, even if the judiciary manages to block executive and legislative intervention in the administration of justice (Couso 2003; Vargas and Duce 2000:10; Ungar 2002:170–84). Conclusions During the 1990s, after a process of democratization and a judicial reform movement, the independence of the judiciary from the executive and the legislative branches (external independence) was maintained in Costa Rica, while reestablished in Chile and Uruguay and obtained for the first time in Brazil. All other countries in the sample show evidence of serious pressures from outside against the bench, either in the appointment procedure, inadequate budget allocation, lack of financial autonomy, political networks or violence against judges and magistrates. During the 1990s the worst case was Peru, due to the complete subordination of the judiciary to the executive

86  The Unfinished Transition to Democracy in Latin America in spite of the judicial reform. More moderate cases have been found in Bolivia, Colombia, Ecuador, Mexico, Paraguay and Venezuela. The most significant features of an independent judiciary, as seen in the Latin American cases, are the following: First, the immovability of judges in practice appears to be the single most important characteristic of an independent supreme court. Wherever the bench is subject to purging, reshuffling or restructuring, the autonomy of the judges is seriously compromised. In part this is because the judges have no assurance that their decisions will not have negative consequences for them in particular. Second, the appointment of members of the judiciary by the executive only tends to inhibit the independence of the judiciary, due to the overwhelming capacity of Latin American executives to exert undue influence over the bench. Cases of independence of the judiciary have been reported precisely when the executive is not involved at all in the selection process of SC justices (Costa Rica since 1948, Mexico 1917–28, Uruguay 1905–73 and again since 1989, and Venezuela since 1981). Third, the financial independence of the judiciaries is best assured when the SC obtains consistently more than 1% of the national budget and—at the same time—when it is allowed administrative autonomy on the use of the resources. Fourth, the existence of judicial career organized by a judicial council, while promotion is based on merit, not on connections, is fundamental for assuring the independence of lower courts’ judges (the internal independence). In future years, the judicial reforms will be able to deliver results in favor of the independence of the judiciaries, only if no further reshuffling is carried out. A number of important reforms have not yet been put into force in Bolivia, Mexico and even Peru after the ending of the Fujimori regime in 2000. However, a more difficult task for all the judiciaries is to counterbalance the executive power and the military when acting unconstitutionally, and to become effective institutions for the protection of human rights. The next three chapters are dedicated to examine the true empowerment of Latin American judiciaries as agents of horizontal accountability and their capacity to protect fundamental rights.

5 The Judiciary’s Capacity to Check the Executive in Latin America During the 1990s

In this chapter I will analyze the capacity of Latin American judiciaries during the 1990s to check the executive power as they are supposed to do, according to the separation of powers and the system of checks and balances adopted in their constitutions. In practice, the judiciaries of the region have found great difficulties in transforming themselves into effective political counterbalances—especially towards the executive branch and the military—1 even after deep judicial reforms have been implemented. These reforms have paid special attention to the independence of the judicial branch. However, most authors point out that such autonomy should not be considered an end, but a means to obtaining impartial courts, that will not yield to undue influences either from other branches of government or the military. Within a liberal democratic system, independent judges should also be capable of checking other branches of government effectively in an impartial manner, in order to be considered true guardians of the constitution.2 In reviewing the effectiveness of the judiciaries at offsetting the executive power during the 1990s, this chapter is divided into four sections. The first part analyzes the Latin American pattern of weak judiciaries by constitutional design and the consequences that this legacy has meant for the democratic consolidation process. In the second part I argue the possible appearance of a Latin American pattern of Democracy, differing from the liberal democratic model by curtailing in practice any true judicial capacity to check the other two branches of government. The third part analyzes three cases of president impeachment: Fernando Collor de Mello in Brazil, Carlos Andrés Pérez in Venezuela and Abdalá Bucaram in Ecuador. In all three cases the judiciary’s enhanced political role is explored to some detail. The fourth part examines the judicial review powers of Latin American judiciaries and how they have been used in some of the best known rulings and crucial cases. In this section, special attention is paid to the other side of the coin: the overextended capacity of the executive to influence the judiciary when politically important cases are at stake.

88  The Unfinished Transition to Democracy in Latin America Horizontal Accountability and Delegative Presidents A common phenomenon in the new democracies of Latin America is that judiciaries appear to have a limited effective capacity to check the executive, despite the fact that the Constitution confers them the role of constitutional guards and even after substantial judicial reforms have taken place. This pattern of judicial weakness has permitted the appearance of “delegative” presidents, or executives that in practice have found little Congressional opposition to their actions, and virtually no resistance from the judicial branch, especially in politically relevant cases. With the exception of Costa Rica, the judicial branch in Latin America is still basically as weak an agent of horizontal accountability as it was before the democratic transitions, when authoritarian presidents exerted almost complete control over the judiciary (Blondel 1995: 340). Horizontal accountability refers to the “capacity of state institutions to check abuses by other public agencies and branches in government.”3 This capacity requires precisely the “auxiliary precautions” pointed out by James Madison, which besides elections, are necessary for keeping state power under control.4 According to Schedler, there are two basic connotations of horizontal accountability: the obligation of public officials to inform about and to explain what they are doing, and the enforcement of sanctions on power holders who have violated their public duties (Schedler 1999:14). Moreover, it is to be highlighted that if there is no prosecution, there is no real accountability, because “the fraudulent or illegal exercise of public power can be shown to be accountable if, and only if, the fraud or illegality is put on trial in an effective and well-secured judicial system.” In this sense, accountability is inherently retrospective (Przeworski, Stokes and Manin 1999: 337, 340), which is why one of the clearest proofs of the horizontal accountability dimension turns out to be impeachment trials against the executive. So, in order to assess how effective the judiciary or legislative branches are as agents of horizontal accountability, we must consider how realistic it is the possibility of any impeachment of the executive whilst in office. The obligation to inform and the enforcement aspects of the horizontal accountability dimension are best captured in the following reformulation of the concept of power5 : “A is accountable to B when A is obliged to inform B about A’s (past or future) actions and decisions to justify them, and to suffer punishment in the case of eventual misconduct.” (Schedler 1999:17)6 The role of the judiciary is thus central to obtaining the structural legal counterbalance in order to restrain the state. The judiciary judgement of the actions or omissions of the executive whilst in office, as well as a legislative

The Judiciary’s Capacity to Check the Executive During the 1990s  89 overview, are the legal ways to make the government accountable between elections. Otherwise, the executive would lack any limits on its exercise of power, except those imposed by actors such as the military, pressure groups, political networks and, in Latin American context, foreign states or foreign political actors. In this case the executive would be constrained only by unwritten rules—usually not democratically constructed—, rather than by the rule of law. This is why, in the opinion of Schedler, Diamond and Plattner: “[I]t is becoming increasingly clear that without working systems that can provide ‘credible’ restraints on the overweening power of the executive, democratic regimes tend to remain shallow, corrupt, vulnerable to plebiscitarian styles of rule, and incapable of guaranteeing basic liberties. In short, they tend to remain ‘low quality democracies’.” (Schedler, Diamond and Plattner 1999: 2) The Latin American Illiberal Democratic Pattern Liberal ideas were present in the Americas well before their independence from Spain, due to the clandestine circulation of the works of liberal philosophers, which were censored by the Holy Inquisition. However, the influence of liberal ideas was brought into sharper focus by the revolutions in North America and France. Napoleon’s invasion of Spain and Portugal in 1808 plus the geographic proximity of the U.S. to Spanish America were decisive factors in giving North America a more direct influence over the newly independent republics. As Lynch puts it: “The very existence of the United States excited the imagination of Spanish Americans (. . .) Constitutions in Latin America were closely modeled on that of the United States, and many of the new leaders— though not Bolivar—were profoundly influenced by North American federalism.” (Lynch 1986:29–30) So, the liberal constitutions of Latin America—which finally prevailed over their conservative counterparts—, established presidential systems, while adopting the division of powers doctrine and featuring a system of checks and balances similar to that found in the US Constitution.7 Nevertheless, the Latin American political elites failed to include any institutional mechanisms to restrain executive power. Instead of self-restraining mechanisms, rule by decree was added to the presidential faculties as one of the most common ways to override opposing legislatures. The judicial branch, for its part, was never granted the independence nor the opportunity to fulfill the political function that the American Supreme Court has had in

90  The Unfinished Transition to Democracy in Latin America the United States, especially after Madbury v. Madison in 1803 (McCloskey 2000; Barnum 1993). Historically, the usual pattern in Latin American regimes has been the excessive prevalence of civilian or military executives, in practice unaccountable either to the legislature or the judiciary. Political instability convinced the liberal and conservative elites of the nineteenth century about the necessity of continuing the Spanish colonial political tradition of concentrating power in the executive hands, in order to cope with the constant political unrest in a quick and discretionary way. Right-wing executives and the military thus obtained a more favorable environment for maintaining power, until populist regimes appeared in the region in the twentieth century. Both solutions included an unchecked executive: the populist regimes required the concentration of power in order to carry out the social-revolutionary changes to which they were committed, while the military and right-wing civilian regimes required a strong executive to resist populist pressures and mobilizations.8 The new Latin American democracies of the 1980s and 1990s re-emerged within the context of the unaccountable presidential pattern which has become deeply rooted in the political culture of both elites and masses, and is certainly one of the longest political traditions of the region due to the inertia of the historical process.9 In such a context, a distinctive Latin American political pattern appeared in the form of “Delegative democracies” where “after the election, voters/delegators are expected to become a passive but cheering audience of what the president does.” (O’Donnell 1994: 60) Even if in some cases presidents have found it difficult to pass legislation when their representation in Congress has been small (minority presidents), the judiciary has continued to have weak feeble horizontal accountability frequently subordinated to the executive, while judges are still susceptible to political pressure (Foweraker, Landman and Harvey 2003: 45). In this Latin American pattern of Democracy, the executive finds some counterbalance from Congress, but no real political counterbalance from the judiciary. In fact, the direction of accountability tends to be the other way around, where the judiciary is accountable in practice to either the executive or to executive-dominated legislatures. The horizontal accountability dynamic of the Latin American pattern differs, then, from the liberal-democratic model in the way depicted in Figure 5.1. In essence, the Latin American pattern is a variation of the illiberal democracy which is flourishing not only in Latin America but in many new democracies around the globe. Illiberal democracies are partial democracies, or “democratically elected regimes, routinely ignoring constitutional limits on their powers and depriving their citizens of basic rights and freedoms.” (Zakaria 1997: 22) On the other hand, the liberal democratic model is based on “free and fair elections plus the rule of law, plus separation of powers, plus protection of basic liberties of speech, assembly, religion and property.” In this sense, the liberal democratic model “is best symbolized not by the mass plebiscite but the impartial judge.” (Zakaria 1997: 27)

The Judiciary’s Capacity to Check the Executive During the 1990s  91 Latin American Pattern (1990s) Executive

Judiciary

Liberal Democratic Model Executive

Legislature10

Judiciary

Legislature

Figure 5.1  Direction of horizontal accountability.

At the other corner of the triangle shown in Figure 5.1, the relationship between the legislative and the executive in Latin America has evolved from the nearly overridden domain of authoritarian presidents during the 1970s, to a more balanced equilibrium in the 1980s and 1990s (Shugart and Carey 1992: 123). Now, the capacity of the Latin American legislatures to check the executive has gone so far that minority presidents have found it difficult or even impossible to pass legislation, as a result of executive-legislature strain in Argentina, Bolivia, Brazil, Ecuador, Mexico, Peru and Venezuela (Shugart and Carey 1992: 204; Linz and Valenzuela 1994: 14; Foweraker, Landman and Harvey 2003:45). Some authors consider that this outcome may jeopardize the democratic consolidation process due to the political rigidities that it implies, creating conditions for the open or covert intervention of the military, or tempting executives to rule by decree in order to override legislatures. In fact the resource to by-pass the legislature has been used in Argentina (Decrees of Necessity and Emergency),11 Brazil (Emergency Decrees),12 Colombia (previous to 1991, by decrees during a state of siege or a “state of economic emergency”), Peru 1990–92 (previous to the Fujimori self-coup) and Venezuela (during the political crisis of 1992). However, other authors point out that the slow and tortuous pace of the legislative process in the above described situations do not constitute a stalemate in the traditional sense, and should not cause alarm because it is only a feature of the decision making process under democratic conditions, of peculiar but nevertheless perfectly functional presidential political systems. In the view of Roett, for example even if the slowness of the legislature in Brazil can cause impatience, things do move in Congress but at a pace determined by the interests of the country’s principal power brokers, and there is always room for compromise, patronage, deals and bargaining (Roett 1997:40). In any event, the national assemblies of Latin America have evolved dramatically from the pure rubber-stamp role they had in the authoritarian regimes of the 1970s, to be more active and assertive political actors in the new democracies of the region.

92  The Unfinished Transition to Democracy in Latin America However such a balance is still to be proven in the judicial-executive relations as well. In this sense, the judicial branch appears as the least evolved institution of the three branches in the post transition period.13 However, there may be some hope for a strengthened role of the judiciary in the new Latin American democracies, as a key institution that contributes to the consolidation of self-restraining states. For example, during the 1990s some exceptions to the delegative democracy pattern appeared in Brazil, Venezuela and Ecuador. All these countries experienced an unprecedented level of trials and impeachments of their executives in office: Fernando Collor de Mello in Brazil (1990–92), Carlos Andrés Pérez in Venezuela (1989–93) and Abdalá Bucaram in Ecuador (1996–97). In the next section the role of the judiciaries during the three impeachment processes is analyzed, paying special attention to the capacity shown by the judicial branch to check the executive. The Role of the Judiciary in Presidential Impeachment: Brazil, Venezuela and Ecuador In September 1992 the Brazilian Congress voted for the temporary suspension of Fernando Collor de Mello as president of Brazil, on corruption charges brought about by his brother, Pedro Collor de Mello, making him the first Latin American president in office ever to be impeached. After a feeble defence that alienated the political parties and provoked massive demonstrations against him, Collor finally resigned in December 1992. The resignation itself was a failed attempt to halt the vote of the senators for starting the executive trial by the judiciary. Collor resigned just hours before the crucial voting, in an attempt to stop the proceedings, but “even though the senators acknowledged that the resignation had eliminated the motive for the impeachment, they voted to impeach Collor and to strip him from his political rights for eight years.” (De Souza: 1999:101) The Brazilian judiciary—enjoying a high degree of independence after the judicial reform included in the 1988 Constitution—played a remarkable role throughout the process. First, the Supreme Court ruled against the executive’s attempt to require loans from the banking system, impeding Collor’s capacity to win legislative support. Next, the judiciary upheld the old 1950 Impeachment Law, ruled that it was not revoked by the 1988 Constitution and also refused to hear Collor’s plea that the impeachment process should be stopped by his resignation, allowing the proceedings to continue. The Court also ruled in favour of broadcasting the deputies’ vote on Collor’s impeachment—to be cast just days before municipal elections and thus putting pressure on individual deputies in search of reelection to vote against Collor. Finally, the Court acquitted the accused because the method of obtaining the evidence—by violating the secrecy of bank accounts—was found to be unlawful. At the same time, the Supreme Court sentenced Collor’s accomplice, Paolo Cesar Farías, to a seven year prison term. In other

The Judiciary’s Capacity to Check the Executive During the 1990s  93 words, as Rosenn and Downes remark: “The Brazilian judiciary certainly did not by itself bring down the Collor presidency, but had it not greased the skids, the impeachment effort would probably never have left the launching pad.” (Rosenn and Downes 1999: 145) The trial lasted two years and three months, an overlong time after which the judiciary acquitted the former president from criminal charges, due to procedural faults committed during the production of evidence. But even if Collor avoided prison, he was not restored as president. In fact, he was replaced by Vice President Itamar Franco for the rest of the presidential period, while the damage that the impeachment did to Collor’s prestige remains permanent, effectively ending his political career. Because Collor was not found guilty of the corruption charges, but in fact he was separated of his charge, the impeachment process in the Brazilian case can be considered as effectively equivalent to a non-confidence vote in a parliament (Rosenn and Downes 1999: ix). This solution for replacing the executive was repeated in the Venezuelan and Ecuadorian impeachment cases, highlighting the rigidities of the Latin American democratic presidential system, but also showing how serious the other branches of government could take their new capacity to check the executive.14 The second term of Venezuelan President, Carlos Andrés Pérez, started with a large-scale riot in Caracas (The Caracazo of February 1989), a popular protest against his monetarist program—far from the social-democratic rhetoric of his campaign. Perez took advantage of the suspension of constitutional guarantees to rule by decree, bypassing Congress not only on political or security issues, but on economic policy as well. This upset the political establishment, and many politicians became convinced that he had to be removed from office. In fact, “several prominent politicians repeatedly made public calls for the president’s resignation.” (Levine and Crisp 1999: 392) Later, in 1992, his government was threatened by attempted coups in February and November, and finally came to a sudden end in 1993 with the impeachment of the executive, just eight months before ending his presidential period. In a sequence of events that recalls Watergate in the United States, Venezuelan reporters Andrés Galdo and José Vicente Rangel denounced the government bringing charges of corruption and embezzlement for 250 million bolívares (17 million dollars). They accused Pérez along with the Minister of the Interior, Alejandro Izaguirre, and the Minister of Foreign Affairs, Reinaldo Figueiredo. The independent Attorney General, Ramón Escovar Salóm, decided to investigate the charges, and his discoveries led him to initiate an impeachment process for the president.15 On May 1993, the Senate unanimously approved the impeachment and Perez was suspended, being replaced by the Vice President Ramón J. Velasquez. On August that year, the Congress voted for the permanent removal of Pérez, because the Constitution prohibited the temporary absence of the president for more than three months (Martin 1996:11–85).

94  The Unfinished Transition to Democracy in Latin America Initially, Pérez denied the charges, but unequivocal evidence was delivered to the Attorney General showing irregular “adjustments” to the Ministry of Foreign Affairs’ budget. Before the judiciary, Pérez accepted that he had redirected the money to send 43 members of the elite civil and military police to protect Nicaraguan President, Violeta Barrios, for three months (April–June 1990). With such a confession, corruption was no longer an issue—even if the Attorney General insisted on some sort of “spiritual corruption” committed by Pérez. In his declaration during the trial, the suspended President recalled similar operations carried out by former governments, in which amounts of the “secret entry” of the executive budget were directed to national security expenses in Central America during the 1980s. He also reminded the members of the Supreme Court about his personal courage and determination to defend all democratic institutions during the attempted coups a year before. Pérez told the justices: “Si no hubiera sido por mi determinación y coraje, ninguno de ustedes estuviera allí sentado.” (“Had it not been for my determination and courage, none of you would be seated there [on the bench]”) (Martin 1996: 128) The trial went on for three years. In the end, the judiciary acquitted Pérez of the charge of corruption, although he was found guilty of the embezzlement of public funds for a purpose different to the one authorized by Congress. Although the money did not actually end up in Perez’ bank accounts, the Court decided against the former President for using funds that were not earmarked to protect the security of the state. Pérez, Figueredo and Izaguirre, along with two other administrative officers from the Ministry of Foreign Affairs and the Office of the Presidency were ordered to return the money and to spend periods varying from one to two years under arrest. Due to his age—over 70 at the time—, Pérez remained under house arrest, while Izaguirre was later pardoned by the next President, Rafael Caldera. Pérez kept his post as Venezuelan Senator for life as he was sentenced for embezzlement, not for corruption (Martin 1996:189–222). The Venezuelan judiciary has been accused of tailoring the sentence in order to allow Perez to preserve his post as life Senator, but the role of the SC showed in fact an unprecedented capacity to check the executive, as the Court hosted the hearings of the impeachment and pronounced the sentence. However, it was actually the Congress which decided to terminate the Pérez government, after three months of technical absence in his post. The political elite and the electorate were both fed up with the inconsistencies of the second term of his Administration, mainly because Pérez was unable to fortify a sounder economy. Although none of the institutional political actors had supported the coups of 1992, they preferred an institutional solution for ending the government. In acting like that, as in the Collor impeachment case, Pérez was removed from office as a consequence of legislature’s decisions rather than by Courts’ orders. This case again resembles the method to remove the executive by peaceful means, as a non-confidence vote in a Parliament, but again in a more dramatic

The Judiciary’s Capacity to Check the Executive During the 1990s  95 and institutionally challenging way, while not directly as a consequence of judicial decisions. In Ecuador, on the other hand, the impeachment of President Abdalá Bucaram in 1997, proved to be a more direct dismissal of the executive by Congress, without any intervention from the judiciary, and again as a nonconfidence vote after just six months of government. His removal was also a sudden case of “removal by acclamation” due to the huge popular demonstrations against the continuation of his government (Luna 1997: 220). In July 1996, Abdalá won 2.3 million votes in a runoff against Jaime Nebot, the official candidate and one of the richest men in Ecuador. Once in office, he acted in such an unprofessional and unpredictable way that earned him to be called “el loco” (the insane).16 In February 1997, 2.5 million people demonstrated against his policies and particularly against his uncanny personal style of ruling Ecuador. Even if Bucaram’s government was almost completely empty of political ideology or a coherent strategy (Carrión 1997:128), the aspects of his ruling style that were hated the most were the nepotism, extensive corruption and ineptitude that prevailed throughout the brief period of his presidency. For starters, his cabinet was full of relatives and cronies, including his brother Adolfo as Minister of Social Welfare. The very leadership of his party, the “Partido Roldosista de Ecuador” (PRE) was dominated by family connections from within the Libyan colony established in Guayaquil.17 Bucaram’s sister Elsa, who was also mayor of Guayaquil, was facing a trial for corruption by the SC at the time, but the case was dismissed 18 days after Bucaram was sworn in as president, while one of the SC judges subsequently became a candidate for the post of Attorney General (Saad 1997: 69–70). Instances of increased corruption included the rise in import taxes on cigarettes and liquor when one of Bucaram’s cronies, Azar, had just imported a massive amount of liquor; and there were persistent rumours that resources collected for poor children by the TV show Teleton, in December 1996, never reached the alleged beneficiaries. Soon afterwards, a furious press campaign against the corrupt practices of the Bucaram government followed the allegations made by the American Ambassador, Leslie Alexander, in the same sense (Saad 1997: 87–8). Bucaram’s declarations during a visit to Peru, proposing a mutual forgiveness over the border conflict—shortly after a serious threat of a military confrontation between the two countries had been averted the year before—, and the increases in energy prices (gas and electricity) and public transport gave rise to the popular demonstrations against Bucaram. In January 1997, a coalition of political and social organizations, trade unions, indigenous associations and student unions united under the name of the Popular Front—led by former presidents León Febres Cordero, Rodrigo Borja and Oswaldo Hurtado. On February 5, during a national demonstration involving 2.5 million people, the Popular Front demanded for the resignation of the President. Since the armed forces refused to intervene this time and left

96  The Unfinished Transition to Democracy in Latin America Congress to find a political solution to the crisis, Bucaram sought shelter in the Presidential Palace that formerly he had scarcely visited. Finally, on February 6, the Congress applied a peculiar but valid interpretation of article 100 of the Constitution18 and voted 44–34 (with two abstentions) to summarily dismiss the President for “mental incapacity” to do his job (Carrion 1997: 140–2; Luna 1997: 201–215; Saad 1997: 8). In the Ecuadorian case, the judicial power did not have the opportunity to play any role in the impeachment process, as Congress was the only agent of horizontal accountability to the executive. However, it is worth noticing that the SC shied away to exert its judicial review over the dismissal procedure overall, and over the irregularities committed by Congress at ignoring the claims of the Vice President in naming Bucaram’s successor. The horizontal accountability dimension in this case was only exercised by the legislature, with the backing of a huge popular demonstration against a particularly inept president. Therefore, the capacity of the Ecuadorian judiciary to check the executive is still to be seen, despite the dismissal of the executive in 1997. The cases outlined above tend to confirm the continuance of the Latin American democratic pattern. In all cases the counterbalance to the executive came mainly from Congress, while only in Brazil and Venezuela was some real political counterbalance registered from the judiciary. Moreover, the capacity of the judiciary to check the executive in both of these two cases was demonstrated just towards the presidents involved: Fernando Collor de Mello in Brazil, and Carlos Andres Perez in Venezuela, both of whom unusually disregarded their political support in Congress and within the judicial system. In the opinion of Rosenn and Downes, a presidential impeachment is unlikely to be repeated in these countries against strong presidents who do a better job protecting their judicial and legislative flanks (Rosenn and Downes 1999: 157). Then, in order to assess the capacity of the judiciary to check the executive in Latin America in less extraordinary circumstances, it is necessary to examine day-to-day examples of the relationship between the two branches of government. Judicial Review Powers in Theory and Practice After the judicial reforms of the 1990s, Latin American judiciaries won formal powers to review and to override unconstitutional laws passed by the legislature and unconstitutional actions committed by the executive. Different to the “amparo” lawsuit, which only protects the individual who files the suit, these judicial figures can produce sentences with general effects. It is worth pointing out that Constitutional Tribunals were established in Bolivia, Brazil, Colombia, Ecuador and Venezuela, while they were already in existence in Chile and Peru. Table 5.1 depicts the formal judicial review powers before and after the reforms, and the judicial organ wielding it.

The Judiciary’s Capacity to Check the Executive During the 1990s  97 Table 5.1  Judicial Review Powers Before and After Judicial Reforms Before Judicial Reform Towards Laws

Towards Executive Actions

Arg

  Yes

Bol

After Judicial Reform Year of Judicial Reform

Towards Laws

Towards Executive Actions

Judicial Organ

  No

1992

Yes

Yes

Supreme Court

  Yes

  Yes

1994

Yes

Yes

Constitutional Tribunal

Bra

  No

  No

1988

Yes

Yes

Constitutional Tribunal

Chi

  Yes

  Yes

1994

Yes

Yes

Constitutional Tribunal

Col

  No

  No

1991

Yes

Yes

Constitutional Court

C.R.

  Yes

  Yes

—

—

—

Supreme Court

Ec

  No

  No

1993

Partial

Partial19

Constitutional Tribunal

Mex

  No

  No

1994

Yes

Yes

Supreme Court

Par

  No

  No

1992

Yes

Yes

Supreme Court

Peru

  Yes

  Yes

1991

Yes

Yes

Constitutional Tribunal

Ur

  No

  No

1989

Yes

Yes

Supreme Court

Ven

  Yes

  Yes

1999

Yes

Yes

Constitutional Tribunal

Sources: Agrícola 1985:54, Bogarin 2000:8, Dakolias 1993:9, Domingo 1993:131, LCHR 2000:11, México SCJN 2001, 2004; Posada 1998: 73, San Martino 1996:1276, Springer 1998, UNDP 2004:81, Ungar 2002:127, Vargas and Duce 2000:2.

Table 5.1 shows that, with the exception of Ecuador, all other countries enjoy formal judicial review powers towards laws or parts or laws issued by the legislature, or against unconstitutional acts of the executive. However, in practice the judiciaries of the region still need to stretch their muscles to effectively counteract important decisions and laws. In Chile, despite the judicial review capacities, the SC was unwilling to even hear any charges of human rights abuses during the Pinochet regime. In Mexico a super­majority vote of 8 votes out of 11 SC justices is required to override laws

98  The Unfinished Transition to Democracy in Latin America and unconstitutional actions, while in Peru a vote of 6 out of the 7 judges of the Constitutional Tribunal is necessary to override any law or action. In Ecuador, any sentence of the Constitutional Tribunal still needs to be approved by Congress, in order to be effectively applied. The ideal data to draw a picture of the day-to-day executive-judiciary relationship, and the extent of the judicial review powers in practice, would be the percentage of cases where the judiciary usually decides against the executive, i.e. the percentage of unconstitutional laws, unconstitutional acts, writs of ”amparo” or “habeas corpus” cases annually decided against the executive. Unfortunately, this data is not yet available for the countries considered here. The only data available includes figures quoted by Springer relating to the Colombian Constitutional Court, which between 1992 and 1996 decided against the executive in 50% of “tutelas” (“habeas corpus” cases) and found to be unconstitutional 30.5% of presidential decrees (Springer 1998: 11). Other similar data is provided by Pablo González-Casanova, on the Mexican judiciary from 1917 to 1960. In a sample of 3,700 cases, 34% of the “amparo” lawsuits received by the courts were decided against the executive (González-Casanova, 1980: 21–24; Verner 1984: 486). However, critics have pointed out that González-Casanova provides no information on how many of the cases were decided during or after the presidential period when the “amparo” lawsuits were filed. Evidently it is quite different, from the point of view of the impartiality of the courts, for a judge to decide against an ex-president or against the executive of the day. In response to the problem of data scarcity, I will focus on the executive’s authority to appoint SC judges and—more importantly—the executive’s power to dismiss them—by legal or any other means. The appointment procedure is of course a good indicator of the executive’s power to influence the judiciary. However, this does not mean that judges who owe their nomination to a particular President will necessarily pledge their allegiance as well (Anglade 1994: 248).20 In considering the executive political influence over the judiciary, a more precise picture appears if, additionally to the appointment procedure, the executive’s authority to dismiss Supreme Court judges is taken into account. Table 5.2 shows both aspects for Latin American judiciaries along with the score for the US Supreme Court. The first column shows a value of 2 if the executive nominates the justices, 1 if the National Assembly or the Senate has a stake in the appointment procedure or 0 if the executive has no appointment capacity. The second column scores 2 if the executive can dismiss the judges—by legal or extralegal means—without consulting Congress, 1 if the dismissal requires the backing of Congress, and 0 if the executive cannot dismiss the justices by any means. The third column scores minus 1 if Congress has a stake in the appointment of justices, or minus 2 if the nomination is exclusive to Congress. A score of minus 0.5 is given when formal procedures require Congress to confirm, but the predominance of the executive over the judiciaries make this step a mere formality in such a way that it can be taken for granted (i.e. Argentina under

The Judiciary’s Capacity to Check the Executive During the 1990s  99 Table 5.2  The Capacity of the Executive to Influence the Judiciary During the 1990s21 President Nominate

President Dismiss

Assembly Nominate or Confirm

Total (Algebraic sum)

Argentina

2

2

  –0.5

   3.5

Bolivia pre94

2

2

  –0.5

   3.5

Mexico

2

2

  –0.5

   3.5

Peru

2

2

–1

 3

Paraguay

2

2

–1

 3

Ecuador

1

2

–1

 2

Brazil

2

0

–1

 1

Colombia

1

0

–2

 1

USA

2

0

–1

 1

Chile

2

0

–1

 1

Venezuela (pre Chávez)

1

1

–2

 0

Bolivia post94

0

0

–2

–2

Costa Rica

0

0

–2

–2

Uruguay

0

0

–2

–2

Source: Partially taken from Shugart and Carey 1992: 122.

Menem, Mexico under the PRI, Peru under Fujimori). Finally, the last column shows the algebraic sum of the scores. In this way, the highest positive score of 3 or 4 indicates the executive strong influence over the judiciary, 0 or 1 reflexes equilibrium of forces between the branches of government, and a minus score shows a limited capacity of the executive to influence SC decisions. This scoring provides a comparative picture—based on the ability of the executive to dismiss Supreme Court justices—, of the executive capacity or incapacity to influence the judiciary. The score runs from minus 2 (low executive capacity to influence the judiciary) to 4 (the highest capacity to influence the judiciary), as is shown in “thermometer” style in Figure 5.2. In between, one finds a zone of healthy interdependence in judicial-executive relations, as in the US example analyzed by Shugart and Carey (1992).

100  The Unfinished Transition to Democracy in Latin America High executive capacity to influence the judiciary

Interdependence between branches

Low executive capacity to influence the judiciary

–3.5

Argentina, Mexico, Peru.

–3

Bolivia pre94, Paraguay.

–2

Ecuador.

–1

Brazil, Colombia, Chile, USA.

–0

Venezuela (pre Chávez).

–1

—

–2

Bolivia post94, Costa Rica, Uruguay.

Figure 5.2  Executive capacity/incapacity to influence the judiciary in the 1990s.

In practice, judicial independence can be observed in the willingness of the courts to rule against government in important political or human right cases (Prillaman 2000: 28; Domingo 1994: 15), for “executive pressure tends to increase in direct proportion to the political importance of a case.” (Ungar 2002: 127) In the next section, politically relevant cases are examined to illustrate the extent of the executive’s capacity to exert undue influence over the Supreme Court, and the capacity or low capacity of the judiciary to rule against government, according to the scores depicted in Table 5.2 and Figure 5.2. The Judiciary in Politically Relevant Cases In the cases of Costa Rica, Uruguay and possibly Bolivia after 1994, a key element to their judicial independence is the fact that the executive has been completely ousted from the appointment procedure. It is the National Assembly who appoints justices without any proposal or influence from the executive. Costa Rica has enjoyed the well deserved prestige of having an impartial Supreme Court22 (Booth 1999: 442) and the same can be said for the Uruguayan court, except during the years of military rule (1973–1983). In the Bolivian case, the constitutional dispositions apparently allow the judiciary to have a more active, independent and impartial role within the political system.23 However, it must be noticed that the new arrangements for Bolivian SC judges date from the 1994 reforms, which only became legally valid in 1998. By the year 2000, only 50% of the judges had been appointed under the new dispositions (Rodríguez 2000).

The Judiciary’s Capacity to Check the Executive During the 1990s  101 Brazil, Chile and Colombia (obtaining a similar score to that of the US Supreme Court) are the countries of the next cluster in Figure 5.2. The equilibrium of forces between the executive and the judiciary is such that we can talk of the interdependence in the relationship of those powers, thereby creating structural conditions for a more or less impartial SC. Actually, in the three Latin American cases—as in that of the US Supreme Court—, repeated rulings against the executive dispositions have been taken, especially in the Brazilian case (Santiso 2003). The Chilean SC has shown a disappointing judicial review performance on balance, even if it has resisted attempts of administrative interference by the executive. This court has not allowed human rights cases to be revisited, despite requests from the Aylwin administration (1990–95), which was committed to respect the independence of the Supreme Court (Couso 2003: 91; Prillaman 2000: 137). The case of Colombia is truly special, as “the Constitutional Court has managed to establish itself as a credible, albeit limited, check on the power of the executive.” (Uprimmy 2003: 53) A rate of 30% of decisions against executive decrees would normally be considered an effective check from the judiciary; however, in politically relevant cases the Court impartiality appeared to be proved during the Gaviria regime (1990–94), since important judicial decisions tended to support his neoliberal economic program. Moreover, in 1995, Congress almost approved a statute to pack the bench, in a reaction to a ruling that active military personnel could no longer sit as judges in a military court. The Colombian case may still be one of relative independence, but in really important political cases the Constitutional Court may still face irresistible pressures from the executive or the military (Posada 1998: 88–90; Uprimny 2003:53). Venezuela is another odd case, in which the SC has sufficient constitutional guarantees to play a more active and impartial role in relation to the executive. However, the bipartisan AD-COPEI establishment still dominated the orientation of judges during the 1990s, and decisions were denounced as following party lines, for “AD and COPEI behaved as though there were a secret clause of the Pact of Punto Fijo prohibiting prosecution for corruption.” (Coppedge 1996:9) Venezuela was also the only case where the Assembly could dismiss a judge for political reasons, masked as disciplinary measures, leaving room for the executive to influence the bench by means of the bipartisan establishment until 1998. This was due to the well known division of judges loyal to the two traditional parties: AD or COPEI. So, even if the executive had no constitutional power to appoint or to dismiss SC judges, he was able to influence the appointment of judges through his own party.24 The fact that the nine members of the SC were renewed in thirds every three years, with a five year presidential period, also gave an important leeway for the executive to influence the appointment of half the SC judges.25 Even in the Perez impeachment case (see above), the predominance of AD judges in the Venezuelan SC was pointed out as the reason why the final decision was not as harsh as it should be.26 After the trial of the

102  The Unfinished Transition to Democracy in Latin America President, the public trust in the judiciary still remained low, so low that in 1997 a state of “judicial emergency” was declared by the president of the SC, starting a crucial impetus for the judicial reform of 1998. During the Hugo Chavez administration, and despite new appointment provisions for SC justices in the 1999 Constitution, the judiciary has not really improved in Venezuela as horizontal accountability agent. Contrary to the 1999 Constitution, the current justices of the Supreme Court, the People’s Defender, the Prosecutor General of the Nation, and the Comptroller General of the Republic were not proposed by the correspondent Committees in the fashion described in the Constitution, but were appointed on provisional basis, which makes their job stability therefore precarious (IACHR 2003: 183). By 2004 more than 80% of Venezuelan judges were reported to be appointed on temporary or provisional basis, thus vulnerable to sudden dismissal (UNDP 2004; HRW 2004). Moreover, a 2004 law expanded the Venezuelan SC from 20 to 32 justices and allow the new members to be designated by simple majority vote of the National Assembly, since a nominee who fails to receive a 2/3 majority in the first three votes can be designated by a simple majority on the fourth vote (HRW 2004). The law also created a mechanism to revoke the appointments of individual justices. Since Hugo Chavez built on his advantage in the National Assembly, “the 2004 law, combined with the already tenuous job security of judges throughout the Venezuelan judiciary, makes it increasingly easy for the executive and legislative branches to exercise political control over the judiciary.”27 Ecuador and Paraguay are examples of an important level of undue influence of the executive over the judiciary. In Ecuador, SC judges remain in their posts for only 6 years, while the presidential term is 4 years.28 Reelection of justices is possible, but very rare in practice. Moreover, the 31 members of the bench are to be renewed in thirds every two years. So, even if the executive has no constitutional power to remove justices, in fact 10 new justices are appointed every two years, and the whole SC is renewed during the presidential period. This circumstance, derived from the very short security of tenure given to justices—in fact, the shortest of the sample—gives the executive still greater leeway to influence the judiciary, despite other constitutional dispositions to the contrary (Dakolias, 1993:17). This power was clearly shown in the rapid acquittal of Elsa Bucaram of corruption charges just after her brother was sworn in as President of Ecuador in 1996. Undue influences over the SC were also denounced in the judicial decision granting a vast inheritance to the personal friend and political ally of Abdalá Bucaram, Eduardo Novoa, the same year (Saad 1997:69–70). In Paraguay, the control that the Colorado party exerts over the Supreme Court is still considerable. Even if in theory the Congress has confirmed the appointment of judges, this counter-balance has been ineffectual within a context of a predominant one-party system.29 Nevertheless, some dual loyalties were observed in Congress after the detention of General Lino Oviedo

The Judiciary’s Capacity to Check the Executive During the 1990s  103 in 1998. The General’s influence over Congress was enough to promote a legislative decree ordering his freedom. However, the initial understanding between Lino Oviedo and President Juan Carlos Wasmosy turned into a political conflict that was inherited by the incoming President Raúl Cubas Grau. The Supreme Court, finally found the decree to free Lino Oviedo unconstitutional, in a case where President Cubas Grau out manoeuvred the influence of General Oviedo within the legislature (Bogarin 2000: 8). According to the indicator of executive influence over the judiciary shown in Table 5.2 and Figure 5.2, the most subordinate judiciaries in the 1990s were Peru and Argentina, followed by Mexico and then Bolivia before the 1994 judicial reform, due precisely to the high level of authority that the executives of these countries had over the appointment of judges procedure and an extensive “de facto” capacity to remove justices from the bench. In the Argentine, Bolivian and Mexican cases, the executive authority was exercised through political networks, where the judges were co-opted to either support the government of the day or to accept his/her removal to either a political post or, in a few cases, to the lower courts. In the Peruvian case, judges lacked any security of tenure during the Fujimori regime, especially after the 1992 self-coup. Judges from higher and lower courts were simply removed from office in Peru if they did not agree with the government’s actions and dispositions. A core of judges tried to resist this unfortunate situation, but then had to face the Fujimori regime’s reprisals, which it exerted over the whole judicial system (De la Jarra 2001). In Argentina, the 1991 judicial reform included a reshuffle of the Supreme Court. President Menem was able to nominate seven out of the nine judges, assuring by this means a judiciary sympathetic to his Administration.30 The brand new SC remained silent when Menem issued hundreds of “Decrees of Necessity and Urgency” in order to bypass Congress, or when he intervened in provincial powers, including local judiciaries, in Tucumán, Catamarca (1991) and Santiago del Estero (December 1993). In particular, despite persistent reports of corruption appeared in the press, by the end of his second term the SC acquitted 100 government officials accused of corruption (Ungar 2002:147), and revoked a writ of “amparo” suspending for 60 days the privatization of Argentine Airlines conceded by a lower court. The judiciary ratified by these means an old Argentine court doctrine: “Not to interfere in the administration of the budget, commonwealth and policy making design, because these are located in the realm of executive and legislative powers.” (San Martino 1996:1276) Then, the Argentine SC just renounced any capacity to check the executive, shielded by an old Argentine judicial doctrine. As Snow puts it: “Although possessing the power of judicial review, the Argentine Supreme Court has defined as political any issue that might lead to a major conflict with the executive branch, a conflict that all Justices realize they should certainly lose.” (In Ungar 2002:128)

104  The Unfinished Transition to Democracy in Latin America Nevertheless, when Menem faced popular demonstrations in 1999 as a result of a decrease in his executive power, the SC ruled against his attempt to put himself forward as a candidate seeking a third term in office—the Court ruled that reelection was allowed, but not for consecutive terms. The unconstitutionality of the attempt was clear, as was the declining presidential power (Ungar 2002: 150). But this ruling against the president is just an exception to the rule, because the horizontal accountability capacity of the judiciary remained null when trying to bring the executive, particularly Menem and his cronies, to justice. The 2001 process against the now ex President Menem for embezzlement of funds and unauthorized arms sales to the Croatian army, and his quick acquittal by the SC despite the evidence (while Menem’s ex partner, Justice Julio Nazareno, was the SC president) shows that the horizontal accountability capacity of the Argentine judiciary is still too weak despite the judicial reform implemented after 1991. In Bolivia, the procedure to appoint judges followed a constitutionally well designed form in the period between the transition to democracy in 1982 and the judicial reform of 1994. However, the judiciary remained one of the least respected institutions in Bolivia, due to the lack of real independence from the political forces—especially the executive—, threats from drug barons and extended corruption. In 1987 eight judges for the SC were impeached after clashing with President Jaime Paz Zamora, in the Taquina case.31 The impeachment trial was never resolved, but after political negotiations the eight justices accused returned to their seats. In a country where the judiciary has been reshuffled 17 times since 1950, it really does not matter the required approval of Congress to confirm appointed judges. In practice, even if not in principle, the executive had the exclusive authority to appoint and to dismiss SC judges, by means of simply reshuffling the bench or, at least, threatening to do so, as President Paz Zamora did in 1987. After the 1994 judicial reform, the capacity of the executive to dismiss SC justices was curtailed, even if the new dispositions were only legally valid in 1998, it is too soon indeed to assess whether a reduction in the influence of the executive over the judiciary has really taken place. If the reforms are to be observed from now onwards,32 the Bolivian judiciary should be virtually free of the overwhelming executive influence that dominated the judicial power for nearly two centuries. At least, no judge has been dismissed so far, which is a good sign that the new dispositions are working towards a more impartial judiciary in Bolivia (Domingo 1993; Malloy and Gamarra 1987; Rodríguez 2000). The Peruvian case is remarkable due to the lack of judicial independence or any capacity of the judiciary to check the executive during the 1990s. Alberto Fujimori was sworn in as constitutional President of Peru in 1990, after defeating writer Mario Vargas Llosa in a runoff by a landslide victory. By 1992, Fujimori’s monetary policies produced outstanding results in the stabilization of the economy, but he felt constrained by the constitutional limits on his presidential power to tackle guerrillas, terrorism and drug

The Judiciary’s Capacity to Check the Executive During the 1990s  105 trafficking. In April 1992, Fujimori carried out the self-coup that started a civil-military government, while closed down Congress and the Constitutional Tribunal and called for a new Constitution (Stokes 1996: 64–65). The previous year Fujimori had managed to pass a judicial reform that was fully integrated into the 1992 Constitution. The reform established a new and virtually unchecked procedure for nominating, removing and promoting judges. As a result, 22 of the 28 SC justices resigned or were dismissed in 1992, and no security of tenure was provided to any judge of the high or lower courts, subjecting the judicial branch to the executive power by these means (De la Jarra 2001; Dodson 2002: 212). International pressure and the prospect of a 22.5 million dollar loan from the World Bank for supporting the judicial reform, led Fujimori to revive the Constitutional Tribunal in 1996. The judicial review powers of this Tribunal were very limited, as the term of 5 years with no immediate reelection was a feeble warrant for the independence of justices, while new rules require a super-majority of 6 out of 7 votes to find any government action unconstitutional. Even if members of the Tribunal were selected by two thirds of Congress, the government made sure that a majority of its members were sympathetic to the executive: “Since 3 of the 7 original appointees were closely allied with the president and his party, the six-vote rule allowed the executive considerable control over the court.” (LCHR 2000: 11) In 1997, when Fujimori sought to remove obstacles to a second reelection within the new rules, three justices of the Constitutional Tribunal pronounced their opinion against Fujimori’s right to put himself forward as a candidate in the year 2000. The six-vote rule meant that they were unable to stop a reinterpretation of the Constitution which was favourable to Fujimori. Nevertheless, in May 1997 the executive-controlled Congress dismissed the three justices that had stood out against the executive. This undue pressure over the Tribunal was outrageous, leading to the resignation of the Tribunal’s president. Later on, when the Judicial Council showed an ability and willingness to take seriously its powers to dismiss corrupt judges colluded with Montesinos (the military chief allied with Fujimori), Congress passed legislation truncating Judicial Council’s authority. This time, all seven members of the Judicial Council resigned in protest. Tired with the constant interference of the executive over the judicial branch, the World Bank indicated by a letter to the Peruvian government that “disbursements would be postponed because the resignation of the members of the National Judicial Council rendered impossible a required subsidiary agreement to be signed (precisely) by the National Judicial Council.” (LCHR 2000: 18) The World Bank granted a six month extension to fill the void left by the resignation of the Judicial Council members. In September 1998, the Congress partially restored the powers of the Judicial Council, but this limited step was not enough to satisfy the requirement of a “meaningful and sustained commitment to judicial independence” set this time by the World Bank. Finally, in a face-saving move, the Peruvian Ministry of Finance wrote

106  The Unfinished Transition to Democracy in Latin America to the World Bank requesting Peru’s withdrawal from the loan, a request that the Bank had no option but to accept. By these means, Fujimori preferred to forget all about the prospective loan, than to loose his tight control over the judiciary. As the Lawyers Committee for Human Rights puts it: “(. . .) Peru is an indisputably clear case of a government that actively demonstrated its disdain for some of the essential ingredients for reform: the judiciary had been a frequent target of the Fujimori administration and the executive-controlled Congress before the approval of the [World Bank] project.” (LCHR 2000: 20) The initial successful fight of Fujimori’s government against terrorism and guerrillas, and the improvements in law and order, were obtained at the expense of the independence, power and the human rights protection capacity of the judicial branch. In the post-Fujimori era there is a movement to “rebuild the judicial power” under the proclamation: “hands off the justice system.” (De la Jarra: 2001) Hopefully this time the democratization process can be accompanied by a more serious reform of the judiciary in Peru, but clear evidence is still missing so far about an effective reinforcement of the judiciary’s power to check the executive. The Mexican is another case where the judicial branch’s capacity to checking the executive has not been the result of the judicial reform.33 In December 1994, the new Ernesto Zedillo administration passed a constitutional amendment in order to restructure the judicial branch. The whole old SC was dismissed, while the number of members for the new one was reduced from 22 to 11; a judicial council was also created and the judiciary was given judicial review powers in the form of “constitutional controversy” (controversia constitucional) and “unconstitutional actions” (acciones de inconstitucionalidad). Despite these constitutional dispositions, there were no real mechanisms at the time to mitigate the customary control of the executive. For starters, the reshuffle of the SC had the clear political intention of purging the Camachistas out (supporters of Zedillo’s main political foe within the PRI) who had been designated as justices.34 Secondly, the reform was set out as an important step to reinforce the trust of the business community in the judicial system, but at the same time disregarding any other political or law and order considerations. And thirdly, the appointment procedure—requiring the approval of two thirds of Congress from a list created by the executive—was still in the hands of the President, given the fact that the PRI was still hugely predominant in the legislature (Cossío 2001:99). Historically, the constitutional disposition relating to the immovability of Mexican SC justices had not been an obstacle to their removal in practice. Despite life tenure, there was a high turnover and desertion rate between 1940 and 1994, when at least 26% of the justices renounced their judicial seats in exchange of political positions. And as much as 46% of the

The Judiciary’s Capacity to Check the Executive During the 1990s  107 new appointees proceeded from political positions, during the same period (Domingo 1997: 14–5) The SC was seen, then, as just another stepping stone to other political positions considered to be higher levels of office within the political network built up by the PRI. As Domingo puts it: “With regard to the executive’s viewpoint, providing career incentives beyond the supreme court was a way both of subordinating the judiciary to the executive influence, and of including the judiciary within the sphere of state patronage and clientelist relations which have characterized the Mexican political system.” (Domingo 1997: 18) In particular, when dealing with politically relevant cases, there was a remarkable pledge of the Mexican judiciary to the executive. This is possibly best illustrated by the nationalization of the banking system in 1982, and the completely opposite policy of re-privatization of the banks in 1989. The SC remained silent about the evident contradiction of the two policies— taken by different presidents—despite the Constitutional provisions on the matter and despite the amparo lawsuits filed by former bankers. Domingo wrote about the relative independence of the Mexican judiciary in the following terms: “On the whole, in cases which are not politically important, it would seem that the supreme court acts with a relative degree of independence and impartiality in questions of amparo constitucional; when the issue is highly political, as was the case with the nationalization of the banks in 1982, the supreme court did not hesitate to side with the government.” (Domingo 1994:15) After the 1994 judicial reform, the pattern of relative independence, and the lack of any real capacity of the judiciary to check the executive remained undisturbed in practice. There have been, indeed, isolated and merely symbolic gestures of horizontal accountability, such as fining the president for procedural faults. However, Fix-Fierro reports that during 1995–2000 most of the SC decisions over “constitutional controversies” favoured the PRI as defendant party (cases of municipalities v. state governments) and also in the few cases where the PRI was plaintiff (Fix-Fierro 2003: 252–3). Also, the SC remained completely silent over the highly political Raúl Salinas case, and also over the “anatocismo” case, which dealt on the constitutionality of the banking practice of charging compound interests on long unpaid mortgage overdrafts. In search of legitimacy after the peso crisis, Zedillo encouraged the detention and subsequent imprisonment of ex-President Carlos Salinas’ brother, Raúl Salinas, accused of being the brains behind the assassination of PRI chairman, José Francisco Ruiz Massieu, in September 1994. Unable to sustain beyond reasonable doubt this accusation, the General Attorney then

108  The Unfinished Transition to Democracy in Latin America moved to add corruption and illicit enrichment to the charges. The defendant party put forward discharge witnesses and constant twists and turns marked the five year trial.35 Finally, the accused was declared guilty, without strong evidence of any of the charges. But the most outrageous feature of this evidently political case was that all along the accused was detained in the high security prison, “Almoloya de Juárez”, designed for drug dealers and extremely dangerous criminals. Raul Salinas was clearly neither, but the political importance of the case made it imperative to secure his imprisonment to the highest level. The abuse of Raul Salinas’ civil rights was not even considered by the SC, and it was not until the final year of the Zedillo administration that the convict was moved to a federal prison, not by order from the courts, but in response to humanitarian requests by the Attorney General, which in Mexico is under executive authority (Dresser 1996: 170–2). Another example of the Mexican judiciary’s limited capacity to contradict the executive was the controversial decision over compound interest on the mortgage assets of the banks. The 1994 peso crisis resulted in millions of overdrafts among middle class in Mexico, especially as a result of personal loans and mortgages. Due to the judicial disarray, trials on overdrafts lasted two years at least, making it very difficult for the banks to recover unpaid capital and interests. The controversy arose due to the high overdraft assets on the banks’ balance sheets—already bailed out by the government through the “Fobaproa” fund36—and the controversy over the legality or illegality of the banks’ practice of adding huge compound interest—an action not clearly agreed on the original contracts—to the unpaid overdrafts. A local court in the state of Chihuahua ruled against the compound interest practice in 1998, and the case reached the SC where it was known as the “anatocismo” case. The Mexican Supreme Court had to pronounce a ruling that would affect around 10 million debtors, on the one hand, or would mean difficult times, if not the collapse of several banks, on the other. The SC decision considered the charge of huge compound interests (in some cases higher than 100% p.a.) over unpaid overdrafts legal, and despite the fact that it was grounded on extremely complicated legalities (in Mexico, this is an indicator of dodgy judicial decisions), the press, debtors associations and most of independent observers considered it a biased sentence. The claim was that in this case, the SC based its ruling not on the legal merits of the case but on the political requirements of the executive, which had followed the policy of bailing out the banks at almost any cost.37 Three SC judges even published a dissenting opinion, fully based on robust legal and judicial considerations, which were completely ignored by the rest of the SC justices.38 A social movement, called “El Barzón”, was formed against the whole compound interest on mortgages issue. And since many observers or members of their families were debtors themselves, the claims of “El Barzón” received the sympathy of important sectors of the press. Debtors associations were formed in parallel, and even if they did not supported the methods of “El

The Judiciary’s Capacity to Check the Executive During the 1990s  109 Barzón” (consisting in outrage protests and demonstrations), they agreed in the basic claim of rejecting huge compound interests on mortgages. In the end, despite the legal arguments pointed out by dissent justices, the judiciary finally ruled against debtors. By blatantly ignoring the legal arguments of dissent justices, “El Barzón” and debtors’ associations, the judiciary missed just another opportunity to show its capacity to rule impartially in a highly political case (Castro 1998; Fix-Fierro 2003, 241 n.2). On electoral matters, the Mexican SC and the Federal Electoral Tribunal (Tribunal Electoral del Poder Judicial de la Federación, TEPJF) have shown more autonomous behaviour. Finkel has tested thirteen SC decisions on electoral matters since 1994, and although the Court heard seven of the cases—while declaring unfounded the other six—only in one did the Court invalidate a state electoral law. In all other cases, the court upheld the contested laws. Overall, Finkel believes that the Court has been empowered at least on electoral matters, but even this author recognizes that “technical and procedural formalities” and “the tendency to uphold the letter rather than the spirit of the law” are weaknesses that still limit the SC (Finkel 2003: 798). For example, it is required a super-majority vote of eight to three to declare a law unconstitutional. Berruecos celebrates the ruling of the TEPJF nullifying elections in Tabasco 2000, and ordering new elections in Yucatan 2001 and in the border city of Ciudad Juarez, Chihuahua, in 2001 (Berruecos 2003: 813–8). However, the rulings have not been entirely consistent, arising suspicions that the now ruling party—the right-wing PAN since 2000—has been favoured. Berruecos herself points out that “not only PRI members, but also political commentators maintained that the Federal Tribunal has ceded to political pressure.” (Berruecos 2003: 820)39 In the last three cases (Argentina, Peru and Mexico) the judiciary was packed or reshuffled and the key authority of the executive to dismiss SC justices was vital for building a court that was sympathetic to government policies. The good news is that in all three cases the only way is upwards, for the SC can be more independent from future presidents. In the case of Mexico in particular, institutional design guarantees that after Zedillo administration, judges will enjoy stronger immovability guarantees. In the Peruvian case, after the Fujimori regime collapsed, an agreement was reached among the political actors in order to restore judicial power to make it a more independent and impartial branch of government (De la Jarra 2001). The case of Argentina is still ambiguous, as President Kirchner forced the resignation of the SC president in 2002. However, new dispositions for the nomination of Argentine SC justices were implemented in 2003, based on recommendations from civil society organizations under the motto: “A Court for Democracy.” (Popkin 2004:8) Table 5.3 is a synthesis of the politically relevant cases considered in this chapter. Notice that only in a handful of cases (Brazil, Colombia, Costa Rica and Chile) can we observe clear cut evidence that the judiciary has acted as

110  The Unfinished Transition to Democracy in Latin America Table 5.3  Politically Relevant Cases Decided by Latin American Supreme Courts Decision by the SC (Pro/vs Executive)

Final Political Outcome

Country

Cases

Argentina

Corruption charges vs. 100 government officials

PRO

Acquittal

Aerolíneas Argentinas 1990

PRO

Overrule of a lower court decision

Reelection right for Menem, 1999.

VS

Reelection allowed, but not in consecutive terms

Embezzlement of funds and corruption by ex pres. Menem

PRO

Acquittal

Bolivia

Taquiña Company Brewery 1978

VS

Political compromise after threatened impeachment of judges

Brazil

Collor Impeachment 1992

VS

Destitution. Final acquittal.

Constant state resistance to collection and passing federal taxes 1994–2000

VS

Sustained Effective check

Letelier case 1993

PRO

Slow progress in transitional justice

Pinochet trial 1998

SUSPENDED (due to mental incapacity)

Civic-military relations at odds

Budgetary constraints Towards Aylwin Gvt. 1990–1995

VS

Effective check

Presidential decrees 1992–1996

VS ( in 30.5% of cases and 50% of human rights tutelas)

Effective check

Chile

Colombia

an effective counter-balance to the executive of the day, without mediating extraordinary circumstances in so doing. The presidential impeachment cases in Brazil, Ecuador and Venezuela still tow the shadow of the nonconfidence vote resemblance. This is enough to make them suspicious of having unwittingly part of a political establishment understanding to get rid of particularly uncomfortable and vulnerable presidents. It is also worth

The Judiciary’s Capacity to Check the Executive During the 1990s  111 Table 5.3  (Continued)

Country

Cases

Decision by the SC (Pro/vs Executive)

Final Political Outcome

Costa Rica

Robert Vesco case, 1970s41

VS

Effective check

Ecuador

Elsa Bucaram 1996

PRO

Acquitted

Novoa’s inheritance 1996

PRO

Political patronage

Anatocismo-Fobaproa 1997

PRO

Bailout of banks Upheld

Raul Salinas, 1995

PRO

Raison d’État

Quintana Roo electoral code, 1998

VS

Vs local authorities42

Paraguay

Legislative decree for the freedom of General Lino Oviedo, 1998

PRO

Oviedo’s influence in Congress surpassed by executive influence in the judiciary

Peru

Right of reelection for Fujimori, 1997

PRO

Destitution of opposing judges

Independence of Judicial Council, 1998

VS

Dissolution of Judicial Council

Uruguay

Release of Tupamaros 1985

VS

Act of national peace making

Venezuela

Perez impeachment 1993

VS

Destitution. Final acquittal of criminal charges

Law of vagabonds and crooks, 1985, 1988.

PRO

Remained until 1997

Law of vagabonds and crooks, 1997

PRO

Overruled

Mexico

noticing that a capacity to check the executive has been seen in Costa Rica clearly shown during the Vesco case in the 1970s and ever since. The capacity of the judiciary to counterbalance the executive is also taken to exist in Uruguay,40 and in Colombia. The Venezuelan case of the “Law of Vagabonds and Crooks” is dubious, because the Supreme Court refused twice, in 1985 and 1988, to hear the

112  The Unfinished Transition to Democracy in Latin America case about the unconstitutionality of the Law, which remained until 1997. In this year, the SC annulled the Act, but by then the government of Hugo Chavez was already in office, and the populist appeal of the new Administration had already made its opposition to this Act clear. This may be another case where the SC ruled according to the political preferences of the government of the day, even if indeed the overruling of the Act was consistent with international treaties on human rights. However, in this particular case the timing of the rule means that there was no clear cut evidence of an impartial decision at least in this case (see Appendix 2). Conclusions Since independence, both the notion of the division of powers and that of checks and balances have been included in Latin American constitutional texts. But the liberal democratic model has been twisted by the historical authority of civil and military executives over both the judiciary and the legislative power. This diversion from the institutional arrangement frustrates the correct functioning of the checks and balances system, resulting in a regional democratic pattern where the executive has been in practice unaccountable, especially to the judicial branch. The new electoral democracies have not yet fully corrected the weak role of the judiciaries in counterbalancing the executive, not even after the judicial reforms trend that spread throughout the region during the 1990s, and even when the judiciaries have been conferred full judicial review powers. As Stotzky assesses: “In the past three decades of democratic transition, the judiciary has had rather limited success in promoting democratic reform.” (Stotzky 2003: 202) The unprecedented impeachment cases of presidents Fernando Collor de Mello in Brazil and Carlos Andrés Pérez in Venezuela were evidence of more assertive supreme courts. However the real check on the executive in both cases was applied by the legislatures. The fact that both ex presidents were acquitted of criminal charges but not reinstated in their former posts after long trials was more a dramatic and extreme alternative to the non-confidence vote in parliament systems than a new pattern of judicial accountability over the executive.43 In the Ecuadorian case, the judiciary had no opportunity to show its capacity to check the executive, as president Abdalá Bucaram was dismissed by the legislature. However, the court did not exert its judicial review powers on the legality of the president dismissal, nor on the validity about the designation of a new president over the claims of the Ecuadorian vice president. Considering the role of the judiciaries of the region in politically relevant cases, substantial impartiality of the bench could be seen particularly in Brazil (local taxes), Chile (budget constraints), the often referred cases of Costa Rica (supported by the Vesco case from the 1970s) and post transitional Uruguay (supported by the quick release of the Tupamaros leadership

The Judiciary’s Capacity to Check the Executive During the 1990s  113 in 1985), and about 30% of presidential decrees and half of the “tutelas” (habeas corpus cases) in Colombia. Apart from the above cases, the unwillingness of most Latin American judiciaries during the 1990s to decide against the executive persisted. This was due to the high executive capacity to interfere with the SC justices’ appointment procedure, and more importantly, due to the executives’ capacity to dismiss SC justices. This was possible due to the existence of patronage and political networks in which the SC used to be considered just another stepping stone to political power, particularly in Argentina, Bolivia, Ecuador, Mexico, Paraguay and Peru. These judiciaries have proven to be still vulnerable to undue interference from the executive, as they were easily reshuffled in the past, or individual judges were pressed to renounce or were just sacked when showing independent views on issuing verdicts. The cases of Argentina and Peru provide the clearest examples of judiciary weakness during the 1990s. Presidents Menem and Fujimori were able to tailor courts sympathetic to their policies. The pardoning of 100 officials accused of corruption in Argentina and the sacking of three judges from the Constitutional Tribunal by an executive-controlled legislature in Peru clearly indicates that the judiciaries were unable to ensure that executives abided by the law. The Mexican case is not as extreme, but the aligning of the SC with the executive of the day in highly political cases—such as the imprisonment of Raúl Salinas in a high security facility and, for many observers and debtors’ associations, the ruling in the “anatocismo” case— showed an unconvincing horizontal accountability capacity, despite some independence on electoral matters particularly since 1997. Apparently, the Mexican SC has shown a transition from complying with the PRI government, to a tendency of complying with the PAN government. Accusations of partiality about a SC ruling on the 2005 budget have given rise to proposals to create a Constitutional Tribunal in Mexico. This proposal was originated by the PRI but also has been rejected by the PAN and the SC (See El Universal, January 1, 2 and 3, 2005). The 2005 popular movement against the trial of the leftist Mayor of Mexico City, Andrés Manuel López Obrador, on the grounds of “judicialization of politics” (the use of laws to criminalize political adversaries) is another example of the deep public distrust about the true impartiality of the Mexican SC (Maravall and Przeworski 2003: 262).44 Only by enhancing their capacity to check the executive, will the Latin American judiciaries be able to make further and meaningful contributions to the overall process of democratic consolidation. During the 1990s the judicial branch was still the least developed of the branches of government in the new Latin American democracies. This is also the case when considering another unchecked agent of Latin American political systems: the military. The next chapter is dedicated to exploring the extent to which military courts remain unchecked by the judicial branch, while military personnel are still beyond the reach of civilian courts, protected by the long term tradition of the military “fuero”.

6 The Judiciary’s Capacity to Bring the Military to Account in Latin America

The military is no doubt one of the most important political actors in Latin America. Its weight as rulers, as guardians of the Constitution, or as arbitrators among political forces and parties has been constant in the region. It was also a crucial factor in the authoritarian states that dominated South American politics in the 1970s. During that decade, repressive military governments ruled in Argentina, Bolivia, Brazil, Chile, Ecuador, Paraguay, Peru, Uruguay and Central America (with the exception of Costa Rica). Even in Colombia, Mexico and Venezuela—where the formal political subordination of the military to civilian authorities is usually taken for granted—, the relevance of the armed forces and their key role in preserving the political stability of these countries cannot be ignored. In fact, only in the case of Costa Rica it is possible to say that the military is not a decisive actor within the political system, due to the suppression of the military institution back in 1948.1 However, the notoriety of the armed forces and their accumulated political privileges in Latin America stand somehow in contradiction with the republican and liberal components required by a consolidated liberal democracy. This is especially so if one of the privileges enjoyed by the military institution is to be unaccountable to the judicial branch, by virtue of the military “fuero” that allows the armed forces to have their own justice system: the military judicial system. The military “fuero” has existed since the Spanish colonial period, and is still very much in place. It locates military courts above civilian ones, even after the democratic transition experienced by most Latin American countries. This is a huge obstacle to the protection of civil rights precisely because the military is constantly denounced as the institution responsible for most human rights violations—certainly in the pre transition period, but also during the new democracies’ existence—, whereas for most observers and NGOs the military judges have proved to be unreliable in punishing the officers responsible for those abuses. The questions to be addressed in this chapter are the following: Just how deep is the weakness of the judiciary to bring the military to account in Latin America? To what extent does the prevalence of the military “fuero” remain a contradiction to the process of democratic consolidation in the

The Judiciary’s Capacity to Bring the Military to Account  115 region? How important is the unsolved problem of transitional justice for the enforcement of the rule of law in these countries? And, what can be done to strengthen the capacity of the Latin American judiciaries to bring the armed forces to account, especially when military personnel are involved in human rights violations? To answer these questions, the weakness of the Latin American judiciaries in front of the military is analyzed from a comparative perspective. The chapter is organized in the following way: the first section examines the historical persistence of the military “fuero” as part of the Latin American political systems, and the extent to which this institution blocks the completeness of the rule of law for a successful democratic consolidation process in Latin America. The second part presents the problem of the unsolved transitional justice, including the discussion for and against the need to punish past human rights violations committed by former military regimes. The third part analyzes the main challenges that unaccountable military courts pose for the rule of law, in particular when human rights abuses are committed by military personnel and remain unpunished. Military “Fuero” in Latin America In Latin American political systems, the military’s historically strong political muscle has been mirrored by the traditional weakness of the judiciary to check it. This characteristic of military unaccountability is the essence of the Spaniard institution called “Fuero militar” or the right granted to the military explorers during the Conquest of America to be tried exclusively by military courts. The tradition was extended throughout the Spanish Empire in the Americas, and went on to be included as part of the legal tradition of the new independent republics (Fitch 1998: 8; Ungar 2002: 128). “Fueros” were corporate rights and privileges dating from medieval Spain and Portugal. In the Americas these rights were given to the local Catholic Church, the army and certain Indian communities. After the independence of the Latin American countries, the elite of locally born Spaniards’ descendants, the “criollos”, created unstable political systems largely based on the triad of the Catholic Church, the landlords and the military. As Zagorski states: “The privileged groups obtained special legal status, giving them the right to control their own affairs and those of their subordinates. They were corporations: legally recognized entities with special status and rights.”2 (Zagorski 1992:5) Among other privileges—such as the exemption from paying taxes—, members of these corporations were protected from being tried by civilian courts as well. The Church and Indian communities lost their “fueros”

116  The Unfinished Transition to Democracy in Latin America around the mid-nineteenth century, after the liberal victory over the Conservatives throughout the region. The army retained its “fuero”, or recovered it later in the twentieth century (those are the cases of Uruguay and Chile after 1973), and has made sure to keep it after the democratic transitions (Fowler 2002:61–5). In a liberal democracy, military courts should have jurisdiction only over military personnel for violations to military regulations. But constant military intervention in politics has given the military a de facto “veto power” in Latin American countries. The sense of superiority that military efficiency, professionalism and patriotic virtues have over the corruption and disorder of civilian governments has tended to reinforce their assumed role as arbitrators among the political actors and their role as ultimate guardians of their nations—a function even included in South American constitutions (Crahan 1982: 51). Under these circumstances, the military “fuero” has actually meant the military’s lack of judicial accountability. Furthermore it has sometimes been part of the military’s tutelary or semi tutelary role over civilian justice—both during the military regimes of the 1970s and afterwards (Higley and Gunther 1992: 338). Therefore, a stronger democratic control of the armed forces is still a pending task for democratic consolidation in Latin America, as military prerogatives in the judicial domain make any system undemocratic (Fitch 1998: 23, 135, 213), and unchecked military courts usually bypass the protections provided in ordinary courts (Shetreet and Deschenes 1985: 616). In all countries in our sample, the military “fuero” persists as a key feature of unaccountable military courts. Only Costa Rica is an exception, precisely because since 1948 the military institution was eliminated for good and replaced by a small police force in order to take care of matters of law and order. Certainly the direct military intervention in Latin American politics is less feasible after the wave of transitions to electoral democracy and the prevailing unfriendly international environment for military regimes in the region. However, as Felipe Agüero affirms: “Although [the military] no longer monopolizes power as it did, it still does not appear to be fully subjected to the control of elected authorities”—or to the judicial branch for the matter (Agüero and Stark 1998: 372). In the same current of opinion, Whitehead has affirmed: “A consolidated democracy cannot be said to exist where there are groups or sectors that systematically enjoy immunity from the requirements of the law.” (Whitehead 1989: 81) With the exception of Costa Rica, the military “fuero” is still present throughout the countries of the sample in the form of unaccountable military courts that even exert jurisdiction over civilians. This military autonomy from the rule of law is expressed all over the region in legal codes restricting civilian courts from exercising jurisdiction over military personnel. Such ad hoc tribunals are in complete opposition to the liberal tradition that armed forces must be accountable to the rule of law and obliged to respect civilian authority (Ungar 2002: 71; Fitch 1998: 42; Nye 1996:153).

The Judiciary’s Capacity to Bring the Military to Account  117 However, it is worth noticing that the sense of superiority felt by the armed forces in Latin America is rooted not only in tradition or force, but is also based on the unusually close bond between the military and local communities. This is especially easy to observe in rural areas, where the state has little presence and the armed forces “often constitutes the only visible evidence of state authority in distant and isolated sections of these countries.” (Rial 1996: 60) The public has repeatedly displayed greater trust in the armed forces as an institution, than towards civilian institutions— the executive, legislative and judiciary included. In Latin America, for some years, social trust in the armed forces has only been matched by indexes of social trust towards the Catholic Church.3 This is a substantial part of the strength of the armed forces, helping to explain the long term uncontested prevalence of the military “fuero” throughout the region. There is also the huge problem of disarray within the judiciary, evident in corrupt practices and the politicization of justice, which is a handicap for civilian governments and certainly deters the military from accepting the superior authority of civilian courts. A more detailed analysis of this factor is the purpose of chapter eight, but here it is sufficient to emphasize that inefficiency and bias of civilian courts are unlikely to impress military officers if presented with the scenario of giving up their military “fuero”. The incompleteness of the rule of law due to the existence of unaccountable military courts will continue, presumably, until the civilian authorities can create a more efficient, independent and truly impartial court system in order to try military personnel, especially when dealing with human rights denunciations committed before and after the transition to democratic rule. The Problem of Unsolved Transitional Justice One of the main social expectations after the transition to civilian regimes was the punishment of human rights violations committed by military regimes. The judiciary’s inability to prosecute the armed forces for past human rights violations is indeed a symptom of a low level of democratic consolidation. In contrast, an ability to prosecute military personnel for human rights abuses would indicate that democracy is already well on the way to consolidation. Transitional justice, in this sense, is a necessary phase that has the function of liberating the past, and allowing society to move on. As considered by Donnelly: “The truth may permit mourning and provide a public solace that may help to make reconciliation possible.” (Donnelly 1998: 49–50) Barahona de Brito, for her part, believes that the truth about human rights abuses is politically fundamental, as it makes new democracies legitimate and credible in the eyes of the victims and relatives, and the allies of their cause that are usually a significant number of people (Barahona de Brito 1997:10). However, in Latin America the balance of power between the armed forces and civilian authorities after the transition, plus the elites’ preferences

118  The Unfinished Transition to Democracy in Latin America and strategic calculations were all factors that decided each country’s difficult choice over whether to prosecute or create an amnesty for the past actions of the military regimes. As summarized by Pion-Berlin: “Decisions to prosecute would have relieved the families of the victims, while creating anxiety and fear within the armed forces. Decisions not to prosecute would have calmed the armed forces but would have left old wounds unhealed and justice not served.” (Pion-Berlin 1994:106) In South America, the tendency has been to start truth commissions— both, official and unofficial—looking to produce a “cathartic” effect in society, by formally acknowledging a long-silenced past while bringing human rights concerns to the fore, and to provide evidence for a truthful account of the rash repression that military regimes implemented in those countries (Hayner 1994: 600, 655).4 But after the truth is acknowledged the main problem of transition justice appears: either to punish those responsible for human rights violations, or to pardon them (given that as military personnel they are still able to create an upheaval in the democratic consolidation process). In Latin America any position adopted to facilitate the transition without jeopardizing a return of authoritarianism,5 has proved to be highly unstable and only temporary. Those affected, along with new generations, demand justice once they find themselves in the new context of democratization. In response, the armed forces tend to pull defensively their strings of power and intimidation in order to maintain their impunity from prosecution for past abuses by means of the amnesties either openly or tacitly agreed with the new civilian authorities. Such pacts have been summarized as follows: “The military agreed to leave power and to accept a new role as an ‘apolitical, obedient and non deliberative body’ in exchange for an amnesty for abuses committed during authoritarian rule (. . .) political parties agreed to respect the electoral process and share power in a manner commensurate with the voting results (. . .) Capitalists agreed to accept legal trade unions and collective bargaining in exchange for significant state subsidies, guarantees against expropriation or socializing property, and promises of labour peace from workers representatives.” (Karl 1990:11) Under these circumstances, as Huntington has stated, “in some respects, truth as well as justice was a threat to democracy.” (Huntington 1991: 231) But the new democracies in South America have relied on truth commissions as a first step towards justice, and sometimes even as a sort of substitution for justice. During the 1990s the judicial systems were generally unable or unwilling to prosecute human rights atrocities committed by past military regimes in Argentina, Brazil, Chile, Paraguay or Uruguay, while

The Judiciary’s Capacity to Bring the Military to Account  119 Bolivia provides the best example of military accountability in a successful transitional justice process in South America.6 In Argentina, after its defeat in the Falklands war, the military was in a weak political position to negotiate the transition. The government of Raúl Alfonsín (1983–1989) favoured the approach of starting an official investigation and judicial proceedings against the former repressive governments, from 1976 to 1983. The military’s self imposed amnesty was annulled, followed by the “Nunca Más” commission and trials of “ex-Junta” members relating to 8,960 disappearances—although human rights organizations claim that the number could be as high as 30,000 (Donnelly 1998: 38). However, uprisings in 1986 give way to a completely different approach and the government decided to send the Final Point Law to Congress. More uprisings in 1987 were followed by the Due Obedience Law, which pardoned low ranking officials on the grounds that they were only following orders given by their superiors. The civil governments’ inability to stand up to the armed forces ended in the early termination of Raúl Alfonsín presidency in 1989.7 In 1989, president Menem pardoned 280 officers and 60 left wing subversives. Finally, in 1990, all five ex members of the military “Juntas” were pardoned by president Menem, as part of a tacit bargain that the government would not pursue any military reform as long as the military did not cause any political problems. Nevertheless, in 1998 four of these rulers were judged and gaoled for the abduction and subsequent adoption of tens of children, sons and daughters of the disappeared while they were held in seven clandestine detention facilities. This was no doubt an unexpected and quiet reversal of the effects of the former presidential pardon (Barahona de Brito 1997:30; Barahona de Brito 2001:137; Fitch 1998:144). The Bolivian case is an exception in the post transition pattern of civil-­ military relations in the Southern Cone. In April 1993, after 9 years of ­proceedings, the Bolivian Supreme Court found General Luis García Meza,—who presided over one of the most brutal regimes in Bolivian history between 1980 to 1981 and attempted a coup in 1982—guilty of 36 charges, including insurrection, murder and fraud (Wiarda and Kleine 2000: 338). After being extradited from Brazil, the General was given 234 years in jail, while 47 of his ex collaborators were given from one to 30 year sentences, while six were acquitted. This was the first time in Latin America that members of a de facto government had been held accountable for usurping power and violating constitutional norms (Barahona de Brito 1997: 24). In Brazil, the military withdrew slowly and gradually after the “abertura” of 1979–85, a circumstance that allowed it to retain a high degree of power. A self proclaimed amnesty was issued in 1979, even with different signs of popular acceptance. The worst human rights violations happened 15 years before, after all. However, the admirable report “Brasil: Nunca mais”8 published in 1985 revealed that around 17,400 individuals were caught up in the military justice system from 1968 to 1978, where there had been 1,843 cases of torture, thousands of coerced confessions, 125 disappeared and 144

120  The Unfinished Transition to Democracy in Latin America people dead as result of torture. Around 25% of the cases suffered physical torture, while virtually all were coerced into signing confessions. The military courts heard every case and found the defendants guilty, despite the fact that even the Military Code rejected to admit coerced confession as evidence in trials. Moreover, even in the few cases where the defendant was found innocent by local military courts, the cases were revised by the Supreme Military Court, where they were declared guilty anyway (Weschler 1998: 7–79). Despite the publishing of “Brasil: Nunca Mais”, and the subsequent release of 444 torturers’ names identified by the report, no judicial action was taken towards any of those responsible for the human rights atrocities, because the 1979 Amnesty Law has been considered valid by the judicial court system in Brazil.9 Several reasons helped to produce this sad outcome. First, the low number of disappearances or killings, compared to the higher levels found in Chile and Uruguay. Second, the time lapse between the period of harshest repression (1964–74) and the transition to civilian rule in 1985, interspersed with periods of “decompresao” and “abertura” characteristic of the governments of General Ernesto Geisel (1974–79) and General Figueiredo (1979–85). Third, the appearance of “Brasil: Nunca Mais” happened after an agreement had been reached between the military in retreat and the new government of José Sarney, who had replaced the deceased elected president Tancredo Neves. Fourth, the military retained considerable power behind the scenes during the Sarney administration, and even if some of its privileges were removed by the Fernando Collor (1988–92) and Itamar Franco (1992–94) governments, its impunity from prosecution for past human rights abuses was still maintained, despite the presence of a brand new and highly independent judiciary created by the 1988 Constitution. As an indicator of the unsolved question of transitional justice, only 1.6% of cases heard by the Brazilian Supreme Court between 1988 to 1993 dealt with civil liberties (Prillaman 2000: 92). However, the government of Fernando Henrique Cardoso passed a law in 1995, recognizing the death of 136 political militants and ordering to pay indemnities to the families of the victims (Hayner 2002: 181). In the words of the Minister of Justice, this was “the least the families can expect and the most the military accept.” In the year 2000, economic compensation was granted also to the relatives of three Argentine citizens who disappeared while in custody in Brazil, in1980. So far, however, there have been no prosecutions of the perpetrators of human rights abuses during the military regime (Barahona de Brito 2001: 143). In Chile, the 1980 Constitution placed unprecedented constrain on the power of elected government authorities to intervene in military affairs, while guaranteeing an important sphere of military intervention in the affairs of the state. Part of the military prerogatives were: the military was granted institutional autonomy, while the president could not appoint or remove

The Judiciary’s Capacity to Bring the Military to Account  121 military commanders without permission of the National Security Council; there also were nine senators designated by the military, while the army retained 10% of income from copper export profits—by the state enterprise CODELCO—in addition to their budget, which was not to be inferior to the 1989 budget (Jelin and Hershberg 1996: 31–3). The structural military tutelage of the civil court system, along with the silence of the Armed Forces— since neither the Rettig Commission not the Corporation of Acknowledge and Reparation had the power to subpoena witnesses. Up to 1997, around 1,500 of the disappeared persons were still to be located. The New Organic Constitutional Law of the Armed Forces which was passed after the elections of December 1989, established minimum levels of military budget— besides the untouched 10% earnings from copper exports (Barahona de Brito 1997:103–188). Pinochet’s warning—“the day they touch any of my men will be the end of the state of law”—(Huntington 1992: 216) and the conservatism of the Supreme Court have been the most visible causes of the judiciary’s refusal to even investigate cases involving military officers after the transition. The Judicial Court also insisted on giving the military courts jurisdiction over cases involving the discovery of mass graves.10 All cases have been transferred to the military courts on the grounds that the Amnesty Law of 1980 precluded investigations of the facts surrounding cases of the detained and the disappeared. President Patricio Aylwin, tried to encourage the courts to pursue the cases researched by the Rettig Commission, claiming that in his opinion the Amnesty Law did not preclude investigations. However, he was unsuccessful in this attempt to bring truth and justice to Chile. The Chilean military was unable to disprove a single fact included in the Rettig Report—which documented 2,279 cases of persons killed by the regime—, but the assassination of Senator Jaime Guzman in 1991 by terrorists relieved the political pressure on the right-wing forces, shifting from a defensive to an offensive position. With such a renovated spirit, conservative politicians managed to defeat the judicial reform initiative in Congress (April 1992), and apart from exceptional trials such as the Letelier, Degollados and Tucapel Jimenez cases,11 started in the early 1990s, the Supreme Court dismissed 25 other cases by the automatic application of the Amnesty Law. Also, around 600 cases are likely to remain in the military courts, despite the 1995 Bill that reformed the Organic Law of the Armed Forces (Barahona de Brito1997:103–187). The government of Patricio Aylwin was unable to do more than to hand out substantial economic and symbolic reparations to the families of the disappeared (Hayner 2002: 173). Nevertheless, in October 1998 the detention of former dictator Augusto Pinochet in London triggered a renewed perspective and impulse in the Chilean courts about the past misdeeds of the Armed Forces. Even if the House of Lords of the United Kingdom ruled twice in favour of his extradition, Pinochet returned to Chile for humanitarian reasons—due to his illness and advanced age—but also after serious

122  The Unfinished Transition to Democracy in Latin America threats from the Chilean military to challenge the government of Eduardo Frei if it failed to bring the General back home. Once in Chile, the protection of the military allowed Pinochet to be declared mentally unable to face any trial. In 1999, a rejuvenated Chilean Supreme Court finally ruled that the 1978 Amnesty no longer applied to cases of disappearances (Hayner 2002: 98). Such a ruling resulted in five generals and 30 officers both active and retired, including an ex “Junta” member, to be arrested and sentenced for human rights crimes (Barahona de Brito 2001:149–150). In Chile, more than in any other case, it is clear that the unsolved transitional justice is still haunting the new democracy, and that truth commissions can “positively contribute to justice and prosecutions, sometimes in the least expected ways.” (Hayner 2002: 88)12 Paraguay had the longest dictatorship in twentieth century Latin America, between 1954 and 1989 under General Alfredo Stroessner ruling. This was a corrupt and repressive regime, although some authors have described it as an unstable democracy, and others defined it as a “democradura” or a sort of light dictatorial government, highly personalized despite sharing some power with the Colorado party. Repression, torture and censorship were used systematically to crush every opposition in Paraguay, while human rights abuses from 1969 were mostly committed by the secret police, at a time that close collaboration and exchange of information was established with neighbour South American dictatorships through the Condor Operation, from 1973 to 1985.13 Data is scarce about the magnitude of the repression, due to the strong secrecy of the regime. However, harsh actions against the Christian Agrarian Leagues (about 3,000 members) and the Paraguayan Communist Party (3 to 5 thousand members) ended up in exile for most of them. The transition to democracy in 1989 was under the complete control of the Colorado party and the military, meaning that there was no cooperation from the new president, General Andrés Rodríguez, to the truth commission or towards any trial of Stroessner and his cronies. To date, no prosecution or punishment for past wrongdoings in the human rights field is envisaged in Paraguay (Rial 1996: 54; Abente 1996:121; Abente 1995: 300; Sondrol 2000:320–1; Lewis 1980:190, 220; Barahona de Brito 1997:31). In Uruguay, 60,000 people, or about 2% of the population were detained during the military regime from 1973 to 1983. Virtually everyone in the country knew someone who had been detained (Donnelly 1998:39). In 1983 the transition to democracy was possible due to a hard bargain between a retreating military and the political parties. The Naval Club talks (or Civil-Military Naval Club Pact) set out the rules for the transition to democracy, but the human rights issue was deliberately avoided by both sides, as an informal “gentlemen’s pact” in order to smoother the path to democracy. After the transition, 338 political prisoners were released and a commission to investigate disappeared persons and a national commission for repatriation were set up. Aid was organized for 16,000 returning exiles, including jobs, medical insurance and housing, while 10,500 civil servants

The Judiciary’s Capacity to Bring the Military to Account  123 were reinstated in their posts. By mid-1985, the Supreme Military Tribunal claimed jurisdiction over all human rights cases in civilian courts, opening the culminant point in the debate over punishment or pardon in this country. However, it was not until the Amnesty Law (“Ley de Caducidad de la Capacidad Punitiva del Estado”), ratified by 53% of the electorate on April 16, 1989, that the battle over transitional justice was brought to an end in Uruguay (Barahona de Brito 1997: 125–150). Only in Bolivia, where no amnesty was issued at all and political will existed, were those responsible for human rights violations subjected to prosecution and punishment. On the other hand, in Paraguay, the lack of political will by the post transitional government and the continuation of the Colorado party control resulted in the absence of prosecution. Nevertheless, economic compensation for the victims has been missing in the Bolivian case, although this has taken place in Argentina, Brazil, Chile and Uruguay.14 In these latter two countries, economic compensation, along with moral and symbolic reparations—acts to restore dignity and reputation, such as naming public schools, places or buildings after the victims— were but a replacement for court justice.15 The case of Uruguay is a polemic one, because in this country the amnesty was ratified by referendum, i.e. by democratic means. In all the other countries, self imposed amnesties (Brazil and Chile) or amnesties agreed through formal or informal elite pacts—and reinforced by military uprisings, political pressure, blackmail or threats as happened in Argentina and even Uruguay before the referendum—frustrated the realization of proper court justice. Table 6.1 summarizes the transitional justice panorama in South America. As Benomar puts it: “Advocates of retribution believe that failure to punish the perpetrators of past human rights abuses automatically condones these atrocious crimes, and therefore both constitutes an invitation to their repetition and undermines the rule of law. On the other side, advocates of a more conciliatory policy stress tactical and prudential considerations, contending that most emerging democracies are still very fragile and may not survive attempts to convict and punish senior officers who still command support within the army. The best way to preserve democracy and human rights, their reasoning goes, is to adopt a policy of national reconciliation and amnesty for past abuses.” (Benomar 1995:33) From this point of view, even the amnesty approved by referendum in Uruguay is subject to criticism, because it failed to comply with international standards, and failed to offer material and moral reparations for the victims. In short, the Amnesty Law in Uruguay—according to this position—did not result in justice, but in a social decision to ignore the human rights question in order to maintain stable relations with the military (Barahona 1997:210). But it can be argued that a closure with the past, if decided by democratic

155

250

2,279

N/A

240

Bolivia 1980–81

Brazil 1976–80

Chile 1973–90

Paraguay 1969–1989

Uruguay 1973–1983

8,000 to 50,000

5,000 to 8,000

320,000

20,000

N.A.

Hundreds of abducted children, sons and daughters of the disappeared, given up illegally for adoption.

Other Victims

Official Commission on Disappeared persons. No official report, but unofficial SERPAJ “Nunca más” report, 1989

1989 No report

Official Rettig Commission and Report, 1990

Unofficial “Brasil: Nunca Mais” report,1985

Parliamentary 1982–5 No report

Official Sabato Commission. “Nunca más” report, 1984

Truth Commissions

1989, “Caducidad Law” approved by referendum

None

1978

1979

None

1986, Final Point Law. 1987, Due obedience Law. 1990, Presidential pardon

Amnesties

No

No

5 generals and 30 officers sentenced in 1999.

No

Yes

Trial of nine former rulers, five sentenced, but walked free in 1990. New trial for abduction/adoption of children in 1998, four of them convicted.

Prosecution/Punishment

Partially taken from Zagorski 1992: 99. Other sources: Hayner 1994, Hayner 2002; Barahona de Brito 1997: 2, Barahona de Brito 2001: 130,137,149; Brysk 1994:84–5; Guest 1990; Lewis 1980: 190, 220; Teitel 2000: 126.

9,000 to 30,000

Argentina 1976–83

Disappeared/ Dead

Table 6.1  Situation of Transitional Justice in South America (Until 2000)16

124  The Unfinished Transition to Democracy in Latin America

The Judiciary’s Capacity to Bring the Military to Account  125 means—such as the referendum—can provide a legitimate pardon of abuses for the sake of the stability and future health of the new democracy. The two positions address important consequences of transitional justice for democratic consolidation, since unaccountable militaries are clearly inconsistent with the rule of law required for the consolidation process. The Inter American Commission on Human Rights (IACHR) itself has insisted on the inconsistency for the rule of law where there have been amnesties for past human rights abuses, even if approved by referendum. However a most urgent requirement for democratic consolidation is to make military personnel accountable to the civilian court system for crimes committed after the transition. As the following section analyzes, the judicial branch was powerless during the 1990s when trying to bring the military to account, even in the post-transition period (Diamond Et. Al. 1999: 3). Post-Transition Impunity of Military Personnel and Unaccountable Military Courts In the words of Little (1997: 187), in post transition Latin America the military has become less active, but still present in the political domain: they may be ‘out’, but they are very far from ‘down’. After the transitions to civilian rule, the armed forces still retain many privileges, including exclusive sovereignty in practice over national security issues, and the power to remain unaccountable to civilian authorities, especially judicial ones, in such a way that the military is indeed “a potent institutional anomaly in the building of democratic processes” in Latin America. The most notorious of their privileges, from the liberal perspective of military subjection to the rule of law, is the prevalence of unaccountable military judicial systems. Military courts have been able to try not only military personnel but also civilians in certain cases, and are prone to dismiss human rights denunciations against military personnel even when such abuses have been committed in the posttransition period (Agüero 1997; Clearly 1997; Fitch 1998, 190–1; Panizza 1995). As for the military budget for these countries, during the 1990s there was a general trend of lower military expenditure—as a percentage of GDP— throughout the region. This was so until 1996, followed by quite a significant upturn in 1997 (See Figure 6.1b). Considered as a percentage of the national budget, military expenditure descended during the 1990s in Argentina, Bolivia, Brazil, Ecuador, Paraguay and Uruguay (Figure 6.1 shows this tendency). The military budget in Argentina reached an all time high in 1982 during the Falklands-Malvinas war (6.4% of the GDP), but successive reductions shrank it to 1.5% of GDP by 1996. Brazilian and Uruguayan militaries saw their allowances stagnate after the transition to electoral democracy, while armed forces in Bolivia, Ecuador and Paraguay curtailed their involvement in managing non-military related state-owned companies,

Arg Bol Bra Ec Par Ur

0

5

10

15

20

25

1990 16,7 18,8 4,6 20,4 13,9 9,1

1991 11,5 14 4,9 24,6 14,3 7,8

1992 16 10,4 3,5 25,4 13,2 8

1993 12,4 8,4 3,4 21 10,7 5,6

1994 12,2 8,1 3,2 21,8 10,9 7,3

1995 11,9 7,5 3,9 18,5 11,6 5,9

1997 6,3 6,7 20,3 10,5 4,4

1996 11,2 7,1 15,6 10,9 4,6

Figure 6.1a  Military expenditure. Source: Statistical Abstract of Latin America, Vol. 38. 2002: 384–389.

% of National Budget

30

Arg Bol Bra Ec Par Ur

126  The Unfinished Transition to Democracy in Latin America

The Judiciary’s Capacity to Bring the Military to Account  127 which accompanied the reduction in military expenditure in these countries (Rial 1996:60). On the other hand, Colombia, Chile, Mexico, Peru and even Venezuela showed an increase in military expenditure during the same period, as it is depicted in Figure 6.1a. In the post transition years, the Chilean military secured more than 16% of the national budget by means of linking their allowance to copper exports revenues. Colombian, Mexican and Peruvian militaries, for their part, have registered higher military expenditures due to anti-guerrilla warfare activities. During the 1990s Colombia engaged again in one of the cyclical offensives against drug trafficking barons and resilient guerrillas, while Fujimori’s Peru declared an extensive war against Sendero Luminoso (Shining Path) guerrilla. In Mexico, the traditionally low figures of military expenditure were upset in the 1990s, jumping from 2.6% of the national budget in 1990 to 4.3% after the upsurge of the “neo-zapatista” rebellion in January 1994; and to 6.2% of the national budget in 1996, after the appearance of leftist guerrillas (“Ejército Popular Revolucionario”—EPR—and “Ejército Revolucionario Popular Independiente”—ERPI) in the southern state of Guerrero (Kline 1996, 39; Stokes 1999, 204; Dresser 1996). However, even the reduction of the military budget in some countries has not meant a similar reduction of privileges for the armed forces. The most important of these privileges is the uncontested system of military courts. Ad hoc tribunals, especially military ones, are inconsistent with a democratic rule of law, because the protections of due process established in ordinary court systems for producing fair trials are not as valid there. It is true that military courts exist everywhere, even in liberal democracies, but to be consistent with the rule of law they should have jurisdiction over military personnel only, while on duty or in wartime for violations of military regulations. And by no means should military courts have to judge or interrogate civilians at all, because they are almost certain to run over the legal rights of the accused (Fitch 1998: 191). In Latin America, the military privileges include the exemption of military officers from trial by civilian courts even when charged with civilian crimes. As stated by Zagorski: “While this military privilege may have significant effects in inhibiting civilian oversight of the military, even more serious today is the protection it provides to members of the armed forces and the institution as a whole against prosecutions for serious human rights violations. The number of these violations, many of which are attributable to the armed forces, is significant.” (Zagorski 1992: 56) The main problem observable in Latin American military courts is that the military is unduly judge and party when dealing with charges of human rights abuses committed by their personnel. In most cases, military courts are made up of military personnel with no legal formation, on temporary assignment. Also, the “sprit de Corps”, strongly infused in military

Col Chi Mex Peru Ven

0

5

10

15

20

1990 17,6 15,4 2,5 10,8 8,4

1991 17,3 14 3,1 9,9 16,8

Figure 6.1b  Military expenditure.

% of National Budget

25

1992 14,7 11,7 3,7 11,1 11,9

1993 18,8 16,4 3,8 10,8 8,7

1994 17,3 16,3 4,3 12,5 6,6

1995 17,9 17,5 3,9 10,1 9

1996 19,2 15,9 3,5 11,5 7,1

1997 19,9 17,8 6,2 13,4 9,8

Col Chi Mex Peru Ven

128  The Unfinished Transition to Democracy in Latin America

1,8

1,85

1,9

1,95

2

2,05

2,1

2,15

2,2

2,25

1990

1991

1992

1993

1994

1995

1996

Figure 6.1b  Military expenditure in LA region. Source: Statistical Abstract of Latin America, Vol. 38. 2002: 384–389.

% of GDP

2,3

1997

The Judiciary’s Capacity to Bring the Military to Account  129

130  The Unfinished Transition to Democracy in Latin America formation combined with the military ethos, produce “judges” willing to assure impunity when military courts deal with human rights abuses. Moreover: “[M]embers of court martial respond hierarchically to their superiors, making it difficult—if not impossible—for these individuals to become independent and impartial judges free from the influence of their commanders or other superiors.” (IACHR 1999: 25) In some countries the military courts are empowered to judge civilians for certain offences that threaten the national security or the security of the army. Moreover, some militaries can intervene in civilian courts when sensitive cases may raise the question of human rights abuses committed by the former military regimes. In short, the military justice prerogatives lead to undue influence over the judicial process (Ungar 2001: 128). The following are some of the most notorious examples of the feeble legal accountability of the armed forces in post transition Latin America, and signs of the weakness of the judiciary to check this key agency of the state. In Brazil, the 1988 Constitution maintained the special military courts and the armed forces were granted a tutelary role over Brazilian politics.17 Brazilian military courts have also been reported to exert wide jurisdiction over civilians charged with political crimes, and above all the armed forces have shown a strong determination to keep the human rights issue unattended. (Hunter 1998: 306; Fitch 1998: 154; Acuña and Smulovitz 1996: 26) After the transition, military courts have shown a poor record in punishing the hundreds of extra judicial executions carried out each year by members of the military police participating in death squad activities while off duty.18 Between 1970 and 1991, the percentage of convictions for these crimes tried by the military courts was a meager 5–8% (Panizza and Barahona de Brito 1998: 34). In the state of Pernambuco, in particular, most judges are simultaneously active military personnel, leading to a situation in which the military police can influence the outcome of the trials (Zaverucha 1999). Colombian special courts have dealt with terrorist and guerrilla prisoners for the last 40 years. But even in the 1992 Constitution, as in the Brazilian case, the military keeps the right to hold a suspect for three days before turning him/her over to the judicial authorities (Anglade 1994: 248). The Colombian military courts have consistently failed to sanction members of the public security forces accused of committing human rights abuses, while NGO’s and monitors assert that virtually 100% of all crimes involving human rights violations remain unpunished. This is so, because judges in the military judicial system are generally members of the military in active service. This situation has continued despite the ruling of the Colombian Constitutional Court against this practice, due to the Legislative modification of article 221 of the Constitution to explicitly allow active military officers to serve on a court martial. The security forces continue to request jurisdiction over cases being processed in the civilian justice system, and have only permitted the transfer of handpicked cases to show a minimum of

The Judiciary’s Capacity to Bring the Military to Account  131 compliance with the Constitutional Court decision of August 5, 1997, but maintaining the bulk of the most significant cases of human rights abuses within the military judicial system (IACHR 1999: 17–43). In Chile, the armed forces still have strong tutelary powers on the judicial system. Since 1981, military courts were given wartime jurisdiction over civilians deemed to have committed acts of terrorism, with no right of appeal for the defendant. By 1996, verdicts issued by the military regime were still in force, and more than 100 political prisoners were still in prison at the time (Barahona de Brito 1997: 45; Acuña and Smulovitz 1996: 31). Towards the judiciary, the Chilean National Security Council exerts only partial control because it designates two of the seven members of the Constitutional Court (Hunter 1998: 308; Scully 1996: 106–8). The tutelary role over justice is substantial too, due to the institutionalized “military attaches” to the Supreme Court chambers whenever the judiciary revisits military justice cases (Vargas and Duce 2000: 24). Moreover, the Supreme Court is made up mostly of judges named by the military government; this helps to explain the SC’s position in August 1990, against the motion arguing that the amnesty law was inapplicable. In fact, all human rights cases have resulted in impunity for the accused, by automatic application of the 1978 Amnesty Law (Garretón 1996: 44–6). In Ecuador, police and military defendants are frequently tried by indulgent special courts in relation to charges concerning common crimes. However, of the total 4,568 cases tried in the police courts since 1985, 46 were given provisional sentences, and only five received final sentences, while up to 1997 the majority were still in process or archived. This means a high level of impunity: around 99.1% of the cases about common crimes and human rights violations committed by police personnel in the post transition period (IACHR 1997). Although the Mexican military has been subordinated to the civilian authorities for decades now, the military “fuero” is firmly in place and the judicial power has no oversight over the military court system at all. In addition, military courts, not the General Prosecutor’s office, investigate cases of human rights violations committed by military personnel. Civilians appear from time to time in military courts, not to be tried, but only as witnesses. However, in special cases individuals accused of committing a crime are interrogated in the “Campo Militar Número Uno” (Military Garrison Number One) without the presence of any lawyers or witnesses.19 Also, anti-guerrilla activities since 1994 against the EZLN (Ejército Zapatista de Liberación Nacional) in Chiapas, and the EPR (Ejército Popular Revolucionario) and ERPI (Ejército Popular Revolucionario Independiente) in Guerrero, have included the detention and interrogation of individuals in military garrisons and military facilities for several days before being turned over to the General Prosecutor office and the civilian court system. Furthermore, several extrajudicial killings against members of social organizations in Guerrero have been constantly denounced, such as the one in

132  The Unfinished Transition to Democracy in Latin America Aguasblancas—captured on video and broadcast on prime time television in 1995—when 17 peasants were summarily executed by members of the armed forces, supervised by local officials. The scandal led Governor Rubén Figueroa to standing down from office after several months when became evident some sort of influence exerted by the President, Ernesto Zedillo, to protect his crony. Finally, the issue was settled but no judicial proceeding was ever initiated against Figueroa (LCHR 2002:119–21). In Peru, in June 1995, Fujimori promulgated an Amnesty Law that placed the military and the police beyond the reach of the law (Barahona de Brito 1997: 218, n.19). The military had control over “emergency zones” while the military “fuero” was even extended by transferring powers from civilian to military courts, and through “Faceless judges” instructed to deal with terrorist and guerrilla cases (usually military personnel with no legal knowledge) (Fitch 1998: 149; Ungar 2002: 79; De la Jarra 2001). This system is also in place in Colombia, and in both cases the anonymity of the prosecutors, judges and witnesses deprives the defendants of the basic guarantees of justice, since there is no cross examination of witnesses, judges lack any legal formation, and “cloned” testimonies under several code names are accepted as incriminatory evidence (IACHR 1999:121–5). In Venezuela also, civilian courts declared themselves incompetent to deal with cases of human rights violations committed by the army in the 1989 events, during the “Caracazo” outrage. Consequently, they transferred these cases to the military court system (Anglade 1994: 247). Venezuelan military judges are entitled to hear “crimes against the independence and security of the nation” and “against liberty and public order” which in practice allow them to judge civilians “for altering the domestic peace” or involved in crimes of a ‘military’ nature. By these means, Venezuelan military courts have taken over trials of military personnel accused of committing civilian offences, and those of civilians committing felonies in military controlled areas (Ungar 2002: 100, 129). Following such a pattern, article 266 of the 1999 Constitution commands preliminary merit trials for all generals and admirals of the armed forces, which in fact means a renewed version of the military “fuero” (IACHR 2003:199). Only in Uruguay has the military “fuero” been somewhat limited after the creation of habeas corpus as a full legal mechanism and the derogation of the Organic Military Law as part of the Naval Club pact reached in 1984. The military justice system was limited to hear cases of military crimes committed in times of war or insurrection, and only if voted by the National Assembly. After much negotiation, it was agreed that common crimes committed by military personnel in time of peace, wherever they were committed, were to be referred to the ordinary justice system. In this respect, despite the upholding of the amnesty for pre-transition human rights abuses, the Uruguayan military court system was deprived of its former authority to protect military personnel if new violations to civil rights are committed in the post-transition period (Barahona de Brito 1997: 74–7). Table 6.2

The Judiciary’s Capacity to Bring the Military to Account  133 Table 6.2  Relations Between Military Courts and Civilian Courts in Mexico and South America Judicial Oversight of Military Courts

Adjudication Over Civilians

Military Tutelary Role Over Civilian Justice

Impunity Cases During the 1990s

Argentina None

No

Low. Tacit bargain with Menem

N/A

Bolivia

None

N/A

Low

N/A

Brazil

None

Yes. For 72 hrs before turning them to civilian courts

High. Military judi- Killing of Street chilcial system replac- dren and others by ing civilian courts military police. in Pernambuco and other states

Colombia Partial, but common contempt of court from military judicial system

Yes. For 72 hrs. Plus faceless judges.

High. Military courts processes most cases of human rights violations.

Chile

None

Yes. In High. Names 2 Release of Pinochet, wartime over judges of Conon mental incapacity terrorists stitutional court. grounds. 2000. Military attaches in civilian courts

Ecuador

None

Yes

Mexico

None

Interrogation None in special cases (Military Garrison No.1)

Anti-guerrilla tactics in Guerrero and Chiapas since 1994.

Paraguay None

N/A

N/A

Massive peasant detentions, without judicial order. Torture, as Stroessner’s period inheritance

Peru

None

Yes Faceless judges

High “Emergency zones”

Anti-guerrilla tactics.

Uruguay

None

No

None

N/A

Venezuela None

Yes

Medium. Preliminary merit trials for generals and admirals.

Human Rights violations cases during Caracazo, transferred to military courts.

Medium. Defence of military owned enterprises from privatization.

Street children and disposable people killings by paramilitary groups. Anti-guerrilla and anti-narcotic tactics

99.1% military personnel accused of common crimes.

134  The Unfinished Transition to Democracy in Latin America resumes the reports reviewed in this chapter about the extent of the military courts’ adjudication in Latin America. The autonomy of the military from the civilian rule of law creates an oasis of impunity that is still very much in place in relation to human rights violations committed by members of the armed forces in the new democracies of Latin America. Indeed, apart from Costa Rica and Uruguay, the military court system elsewhere in the region appears to be a realm of impunity and protection for military personnel committing civil rights violations even in the post transition period. Civil-military relations in Mexico and South America are still running on the understanding of a virtual incapacity of the judiciary to bring the military to justice, either for pre-transition violations—through the amnesty laws—or for post-transition abuses—by the overprotective action of the military courts over their own personnel. Even if a renewal of justices in the Supreme Court and a new balance of forces between military and civilian authorities may lead to a different judicial approach towards human rights abuses committed by the military—as in the case of Chile after Pinochet’s return from his detention in London—, the illiberal military “fuero” remains very much in place in most of the South American countries. Conclusions The traditional military “fuero” must not be part of the new Latin American democracies if the consolidation process is to include the participation of the armed forces. This privilege means that neither the judicial power, nor the legislative or the executive branches can exert any supervision over the military justice system. Multiple shortcomings can be observed in the functioning of military courts, starting with the lack of proper legal training for military judges, and above all the lack of autonomy and impartiality of the court martial when judging human rights violations committed by military personnel. With the exception of Costa Rica, and to some extent Bolivia and Uruguay, there is a regional patter in which, by means of constitutional law or amnesties, the judicial power simply cannot bring the military into account, neither for the atrocities committed before the transitions—although some improvements have been registered in Argentina and Chile—, nor for common crimes committed by military personnel in the post transition period. Reductions in the military budget have not meant similar reductions in judicial privileges for the armed forces. In particular, the lack of military accountability is a serious fault line in the regional democratic pattern. Nevertheless, a necessary realistic consideration should be carried out about the less than appropriate conditions of the judiciaries in Latin America to offer fair trails to the military personnel. As Fitch puts it: “If civilian leaders cannot behave according to democratic rule, there is little likelihood that the military will respect them or submit to democratic control.” (Fitch 1998:

The Judiciary’s Capacity to Bring the Military to Account  135 173) Genuine prevention of human rights abuses committed by armed forces requires the reformation of the institutions that made such violations possible under dictatorships and authoritarian regimes: the military and the judiciary (Garretón 1996: 53). In other words, a high quality democracy requires the reformulation of the coercive dimension of the state, in order to support truly rights-protective regimes in Latin America. The disarray of the judicial systems is no doubt a good excuse for the military to oppose any attempt to dismantle the “fuero militar” and let their personnel to be brought to justice by inefficient civilian courts, vulnerable to political influences and prone to corruption practices. Symptomatic of this point of view is the low public confidence in the judiciary—around 30% in average among the region—considerably lower than the public confidence in the armed forces—above 60% in average (Hagopian 1998:119). As long as such an asymmetry about the public confidence on both institutions persists, the necessary moral authority of the judiciaries to supervise the military justice will be insufficient. In any event, within a liberal democracy judicial systems must definitively be able to protect human rights abuses committed after the transition to democracy, either by armed forces or by any other agent or agency of the state. The next chapter analyzes this capacity of the already reformed judicial systems of the region during the 1990s.

7 Judicial Systems’ Ability to Protect Human Rights in the New Democracies of Latin America

After transition from military and authoritarian rule, it is commonly assumed that the new electoral democracy would be followed straight away by a regime fully committed to the protection of civic and political rights. However, such an outcome should not be taken for granted in the Latin American region, with virtually no tradition of either a truly independent judiciary or respect of judicial guarantees for the impartial administration of justice in all cases, nor a court system accessible to every citizen. After all, due process of law was a commonly unfulfilled legal concept in the Americas, because of the constant interventions by the military in the political systems or due to authoritarian intrusions of the executives into the judicial branch.1 Also, governments had long disregarded any creation or enhancement of legal and judicial structures truly protective of civil and political rights and this has proven to be a difficult tendency to revert, even after many years of democratic rule as it has been the case in Colombia and Venezuela. The purpose of this chapter is to examine the capacity of the post­transitional regimes in Latin America to protect human rights during the 1990s. In so doing, I will look at the level of human rights protection in general and civil rights protection in particular. The chapter considers the whole judicial system’s capacity to protect human rights—except for the military courts—, emphasizing the civilian court system and the supreme courts as core components of the domestic judicial remedies for the protection of human rights. Also, even if rights recognized by the international regime of human rights will be considered in general, the emphasis will be placed on the rights specifically recognized in the constitutions (fundamental rights) for the evaluation of any rights protection capacity level. This is precisely the criterion followed by the Inter American Commission of Human Rights in order to accept cases of possible governmental responsibility in specific human rights violations: whenever the local remedies for the protection of human rights have been exhausted, or when there are reasonable grounds to assume that local remedies will not suffice to protect the rights involved in the claims. The questions to be considered in this chapter are the following: Just how effective are the new Latin American democracies in protecting human

Judicial Ability to Protect Human Rights in the New Democracies  137 rights in general, and civil rights in particular, during the post transition era? Are there structural challenges to the judicial systems impeding them to effectively protect fundamental rights in all cases? Can we reasonably expect the new democracies to evolve towards a rights-protective judicial service for the common citizen’s behalf, matching international standards of due process of law? In order to answer these questions, I will pay special attention to cases accepted by the Inter American Commission of Human Rights (IACHR) on grounds of exhaustion of domestic judicial resources—which implies the failure of judicial systems to protect the rights involved in these cases—, and cases accepted due to the presumption that judiciaries are unable to protect those rights. In any event, I will consider cases where domestic judicial systems are reasonably believed to have failed, exposing considerable breaches in their capacity to protect human rights. The chapter has five sections: the first one will review the extent of the rights protective component in the new Latin American democracies during the 1990s; the second will revisit domestic bills of rights and the international regime of rights that apply for the countries considered here; the third part will list the shortcomings of the judicial systems in effectively protecting the enlisted rights; the fourth section will look into the number of denunciations that have been accepted by the IACHR, followed by a review of the type of human rights violations that most often have occurred in the new democracies of the Americas. Finally, the fifth part will look into the recommendations issued by international agencies and human rights groups to help judicial systems to protect civil and political rights. Further recommendations will be suggested in this last part, in order to enhance due process of law guarantees as part of the independent, impartial and efficient court system required for the consolidation of liberal democracies in Latin America. Human Rights Protection in Latin America During the 1990s During the 1980s and 1990s, all countries in the sample showed a firm commitment to democratic electoral procedures, with the sole exceptions of Peru after 1992 and Mexico before 1997. Some even adopted new constitutions, in a gesture that underlines the transition not only to civilian government, but to democratic regime. Nevertheless, a closer look at the new democracies will show that they have not proved to be as rights protective as they were supposed to be. For most Non Governmental Organizations (NGOs) and agencies of the Human Rights community, the problem in Latin America is “the persistence of egregious, systematic human rights violations in countries with institutional democracies.” (HRW 1995) The quality of democracy in the new regimes is at the heart of the question: in

138  The Unfinished Transition to Democracy in Latin America the main they are shallow electoral democracies that are able to guarantee accurate counting of millions of votes, and even to solve post electoral disputes through reliable and independent electoral tribunals, but are unable to protect human rights to an acceptable degree. In many new democracies, even if the general picture is for the better, the abuses still taking place are just as condemnable as they were during the authoritarian years: “Torture, police abuse, assassinations of political activists and ‘disposable people’, electoral irregularities, and threats against the press co-existed with nominally democratic governments and were tolerated by them (. . .) Torture is commonplace throughout the region.” (Clearly 1997: 62) Core human rights organizations have consistently denounced more—rather than fewer—cases of human rights abuses in the post transition era throughout the region. Even if one recognizes that it is now easier to make denunciations than before, when we see the picture in detail, it is simply not consistent with rights protective regimes. Table 7.1 is intended as a general guide—i.e. not an accurate measurement—broadly illustrating how bleak the picture may be:

Table 7.1  Number of Cases Denounced by Core Human Rights Organizations Between 1989–1994 1989

1994

Change

Argentina

24

29

  +5

Bolivia

 4

29

+25

Brazil

50

84

+34

Colombia

11

39

+28

Costa Rica

 9

40

+31

Chile

52

45

  –7

Ecuador

12

44

+32

Mexico

20

68

+48

Paraguay

—

—

—

Peru

14

77

+63

Uruguay

 5

18

+13

Venezuela

11

23

+12

Source: Human Rights Internet Reporter Masterlist (Ottawa: HR Internet 1994) Cit. pos Cleary 1997: 63.

Judicial Ability to Protect Human Rights in the New Democracies  139 Every country in the sample—with the exception of Chile and the missing data for Paraguay—shows a worrisome increase in the number of human rights violations denounced by the mid 1990s compared to the late 1980s. Although such violations declined slightly in Chile, when we consider that it had recently transitioned to democracy from a harsh dictatorship, those numbers are less satisfactory. The level of 45 Chilean cases in 1994 was only surpassed by the number of accusations in Mexico, Peru and Brazil, and still reflects a high level of human rights violations for the standards expected from a democratic country. Rights-in-Principle in New Latin American Democracies A rights protective judicial system must provide effective protection of all rights and freedoms explicitly recognized in the Constitution of each country (fundamental rights), as well as those included in the international regime of human rights: the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights (ICCPR), the International Covenant of Economic, Social and Cultural Rights (ICESCR), the United Nations Convention against Torture, and in the cases considered here, the American Declaration of Human Rights, the Organization of American States Charter and all other instruments that constitute the Inter-American System of Human Rights2 (Boyle and Sherif 1996: 182; Davidson 1998). All countries in our sample have adopted constitutions that include a bill of rights modeled on the first ten amendments of the American Constitution. Despite multiple changes, new constitutions, revolutions and different regimes, this bill of rights has been constant in virtually all constitutional texts in Latin America. Many of the countries in the sample have recently adopted brand new constitutions: Argentina (1992), Bolivia (1994), Brazil (1988), Colombia (1991), Chile (1980), Ecuador (1996), Paraguay (1992), Peru (1993) and Venezuela (1999). Only Costa Rica (1949), Mexico (1917) and Uruguay (1930) have kept constitutions adopted during the first half of the twentieth century.3 Throughout the 1990s, all constitutions included a bill of rights that acknowledged the right to life, non discrimination, freedom and personal security, due process of law and the right to a fair trial, while most included the principle of the presumption of innocence and the habeas corpus resource. Table 7.2 shows the constitutional articles that protect these liberties in each country. For the purposes of this chapter, I will pay special attention to the capacity of Latin American judicial systems to protect the following rights—all of which are explicit in the constitutional bill of rights in all countries in the sample during the post transition period: a) right to life, b) freedom from arbitrary arrest and detention, c) right to proper administration of justice (effective due process guarantees), d) right to a fair trial and e) protection of

140  The Unfinished Transition to Democracy in Latin America Table 7.2  Constitutional Articles Protecting Individual Rights in Latin America, 19974 Due Process of Law

Presumption of Innocence

Habeas Corpus5

18

18

43

6,9

15,116

9,15

18

3, 5

5 ii, iii, lxi, lxiv

5 xxxv, lxviii

5 lvii, lviii

5, lxxvii

11

13, 43

28

29,31,87

29

30

C.R.

21

19, 33

20,37,38,44

41,153

39

48

Chi

19 ord.1

1, 19 ord.2

19 ord.1, 7, 21

19 ord.3

19 ord.7

21

Ec

22 ord.1

22, ord.6

22 ord.1, 9

20, 21, 117

22 ord.19g

28

Mex

14

1, 4, 32

5, 14, 15,16

16, 17, 20

14

—

Par

4

46, 47, 48

9, 10, 11

16, 17, 136

171

133

Peru

2 ord.1

2 ord.2

2 ord.1, 24

139 ord.3, 14

2 ord. 24 e)

200 inc.1

Ur

7, 26

8

31, 7

12, 23

—

17

Ven

58

61

60

68, 206

—

—

Right to Life

Non Discrimination

Arg

29

16,37

18

Bol

7

6

Bra

5 xlvii a)

Col

Freedom

Source: Ortiz-Alvarez, L. and J. Lejarza 1997.

human dignity while in detention (freedom from torture).6 f) The requirement of fair trials implies that the common citizen has unrestrained access to courts, which must be independent and free of undue influences from the executive power and from parties in the case, in order to assure impartiality. Further indispensable conditions are g) fair and public hearings, h) no undue delays in delivering the final sentence (within a reasonable time), and i) a just, fair and humane criminal system (Boyle and Sherif 1996:182–5). Other rights to be taken into account are: j) equal protection under the law (no discrimination due to race, gender or status) and k) freedom of expression (press freedom). Also, it is of the utmost importance to notice l) whether or not the local courts of both low and high level refer to international instruments of human rights protection in their verdicts. As Boyle and Sherif have stated:

Judicial Ability to Protect Human Rights in the New Democracies  141 “In order to protect human rights a supreme court may be established, vested with the right of judicial review. Such a body, with a mandate to judge the constitutional validity of legislation, serves as an arbiter between the government and the individual and as a custodian of all the rights embodied in the constitution, together with internationally proclaimed human rights and freedoms.” (Boyle and Sherif 1996:165) The international and regional bill of rights relevant to the countries considered here also includes all the aforementioned rights. In particular, the Inter American System of Human Rights protects the right to life, right to personal liberty and security, right to a fair trial, freedom of expression, equal protection under the law and the right to judicial protection. Other civil and political rights protected are the freedom of thought and religion, freedom of association and peaceful assembly, family rights, property rights, freedom of movement, right to a nationality, rights of the child, right to a residence, the right to participate in government and the prohibition to postpone elections for more than ten years (Davidson 1998). All countries in the sample have ratified the American Convention on Human Rights, and by the late 1990s most of them have accepted the jurisdictional competence of the Inter American Court of Human Rights (I-A Court), with the exception of Brazil and Mexico7 (Fix-Zamudio 1997: 69). In any event, it is clear that all countries in the sample are committed to the protection of the rights stated in the American Convention of Human Rights and are subject to the monitoring of the Inter American Commission of Human Rights (IACHR) as stated in the 1967 Protocol of Buenos Aires, signed and ratified by all countries considered here (Gomez 1998:174). Formal and Practical Inadequacies of the Judicial Systems to Protect Fundamental Rights in Latin America Despite the distinction between fundamental rights and human rights—in which the former refers only to those rights specifically protected by the domestic bill of rights and the latter refers to the whole catalogue of rights included in the international instruments of human rights—, most claims received by international agencies deal with violations of precisely those rights protected by domestic laws, i.e. fundamental rights. This is so because there is a gap between rights-in-principle and rights-in-practice in most Latin American countries, which has been identified and analyzed by Foweraker and Landman (1997). This gaps depicts the difference between “the legal and procedural rules a polity establishes in order to guarantee the civil and political rights of its citizens” and “those civil and political rights actually enjoyed by citizens within the polity.” (Foweraker and Landman 1997: 49) The domestic legal and procedural rules for the protection of civil and

142  The Unfinished Transition to Democracy in Latin America political rights are precisely the so called “domestic judicial resources” that must be exhausted first, for the petitions of human rights violations to be considered by the IACHR. But just how protective are these domestic judicial resources? In the following paragraphs I will describe briefly the most outrageous inadequacies—that have been pointed out by observers, judges and scholars—of the judicial systems in Latin America in relation to the actual level of protection of fundamental rights. In Latin America there are persistent problems with domestic judicial resources for the protection of fundamental rights. In some cases, clearly insufficient and inadequate judicial mechanisms are legally in force. As was shown in chapter 4, with a few exceptions the judiciaries of the region are not yet free from undue political influence from the executive. Also, as stated in chapter 6, there is a striking breach of the domestic mechanisms protecting fundamental rights when the law acknowledges the existence of military courts—with ample jurisdiction to hear cases of human rights violations committed by members of the armed forces and the police, for example—, and by the overall resistance of the military apparatus to render to the civilian courts cases of military personnel accused of non-military crimes or crimes committed while off duty. However, apart from these two areas of inadequacies—which apply mainly when political interests or military personnel are involved—there are still extended areas of judicial structures and procedures that reflect a generic judicial inadequacy to protect fundamental rights, even in cases without a political edge or where no military personnel is involved. This is the case of structural inadequacies in the judicial systems of Latin America that allow a general condition of impunity after the violation of fundamental rights. This situation is more the norm than the exception in some countries of our sample, particularly against the poor and the unprivileged sectors of these societies. For starters, there is a virtual lack of courthouses in vast rural areas. This simply denies access—or makes it extremely difficult—to the judicial system for millions of Latin Americans living in distant and scattered localities. No judges, courts, attorneys or public ministries are available in extensive areas of most countries. This problem is not exclusive to the largest nations (the Amazon region in Brazil or “Las Cañadas” and “Los Altos de Chiapas” in Mexico, for example) but even smaller countries of South America, notably Bolivia, Ecuador and Peru, are strikingly unable to provide a court system available also to the rural and indigenous population.8 In most countries, the court system is mainly (if not exclusively) accessible to urban, middle class, the rich, educated and non-indigenous population. In particular, indigenous citizens are seemingly beyond the reach of the court system, except as detainees. For these non Spanish-speakers Latin Americans, the language barrier makes them unable to even grasp the charges brought against them or to understand the bailiffs, attorneys and lawyers that put them into prison. The same applies to the poor, who are commonly “affected by selective and

Judicial Ability to Protect Human Rights in the New Democracies  143 discriminatory processes encroached in the penal system.”9 (Vanderschueren and Oviedo 1995: 15; Ungar 2002:191) Secondly, even if the law establishes the public defense office (Defensoría del Pueblo) for a coordinated defense of the poor, in practice this institution is virtually inexistent in most countries of the sample. The most striking example is Ecuador, a country of 4 million inhabitants that has only 12 public defenders, eight of them assigned to the most populated cities, Quito and Guayaquil. In Mexico, public defenders can contact the inmates that they represent only once or twice a year, as there are only 467 federal public defenders distributed in 160 towns (UNCHR 2002: 95). In Venezuela, there were 159 public defenders for the entire country (Ungar 2002: 207). This is an undeniable bias of the Latin American judicial systems against the poor and the underprivileged, defenseless in practice when facing judicial accusations. Equality in law is not a reality for them in this situation, being vulnerable to unfair trials and abusive deprivation of their liberty. For them, even if the Constitution acknowledges the principle that every one is equal in front of the law the truth is that in practice some citizens are more equal than others in front of the law, and the poor are placed definitively on the disadvantaged side. Thirdly, the “amparo” lawsuit is not as effective as it should be due to its lack of “erga omnes” protection. This means that a judicial decision is restricted to the particular case, and does not create jurisprudence to be applied thereafter to everyone affected by the same constitutional breach. Judicial decisions are taken on a case by case basis, and their effects only relate to the specific case filed. Supreme courts end up knowing of every case, instead of leaving the lower courts to apply jurisprudence. Delays in “amparo” decisions are common because both important and unimportant cases alike follow the same process, and there is no guarantee that the decision reached in one case will be applied to a subsequent similar one. In the beginning, the “amparo” lawsuit procedure was a necessary legal mechanism and was in fact the only protection of fundamental rights in Mexico—where it was originated—, it was later adopted in Bolivia (art.19, 119), Colombia (art. 86), Ecuador (art. 31), Paraguay (art. 134), Peru (art.200 ord.7) and Venezuela (art.65).10 Other judicial mechanisms that act similar to the “amparo” procedure—the “injuction” in Brazil (art.5 LXIX, LXX), the “tutela” in Colombia (art. 86, 202 ord.3) and the “Recurso de Protección” in Chile (art.20)—seem to be little better at protecting fundamental rights.11 In principle, the victim of an abuse must only communicate (telegraph or mail included) with the nearest courtroom—reporting his/her name, the summary of his/her claim, and the authority responsible for it—, for the “amparo” lawsuit to be filed. In practice, however, it is an extremely complicated process, where timing and correct proceeding knowledge is fundamental if the “amparo” lawsuit is to succeed.12 However, the worst shortcomings of the writ of “amparo” deal with its increasing inadequacy to effectively protect fundamental rights. For starters, each amparo lawsuit

144  The Unfinished Transition to Democracy in Latin America must be decided on a case by case base, given that each lacks the “erga omnes” effect. Worse still, even if the circumstances of fundamental rights violation may be identical, a mistake in the proceedings or a wrong timing in filing suit could lead to a different court decision. In this case, the rights of one person might be protected, while another person in the same situation might be deprived of the same sort of protection.13 Another unfortunate consequence of the lack of the “erga omnes” effect of the “amparo” decision, is that as each person must file his/her own writ of “amparo”. In Mexico, thousands of “amparo” petitions per year flow into the courts and judges have no time to do any thing else but to revise the lawsuits and produce “amparo” decisions. Given that the filing of an “amparo” lawsuit itself halts the penal proceedings—particularly provisional imprisonments—, this is a significant encouragement for lawyers to file suits, even if beforehand they know that the petition will be denied, because by these means they can “buy time” for their clients.14 These inadequacies are so evident that even the judiciaries of the region have accepted the shortcomings of the “amparo” procedure. In Mexico, for example, there are already some proposals to reform the “amparo” system, but they are still too weak to be taken as a serious reform proposal (Mexico, SCJN 1994). In the opinion of the Special Rapporteur on the independence of judges and lawyers, there are unnecessary delays in the process, when half of the petitions are resolved within six months, and ultimately only 20% of the “amparo” lawsuits promoted are declared successful in the end (UNCHR 2002: 142–3). Some other serious shortcomings of the judicial systems in protecting fundamental rights are deeply rooted in the lack of military accountability to the judiciary, as a structural incompleteness of the rule of law that allows a pattern of unpunished human rights violations committed by members of the armed forces. Human rights protection in military justice systems is virtually inexistent, with the exception of Costa Rica, where the military institution was abolished entirely in 1948. This aspect of the Latin American judiciaries was more extensively examined in the previous chapter. The overall inefficiency of the judicial systems, combined with the scarcity of material and human resources, along with the increasing corruption that permeates the operation of the courts, creates also a bleak environment that does not contribute much to a rights protective system in Latin America. The inefficiency and corruption in the prosecution and administration of justice usually lead to a general failure to fulfill the fundamental rights of detainees. Procedural time limits are commonly disregarded, resulting in excessive preventive detention times than in some cases would even exceed the maximum penalty prescribed by law if the person was found guilty. And it is not a minor problem, since it affects 70% of inmates in Ecuador, 80% of detainees in Uruguay and 90% of the prison population in Bolivia and Paraguay (Rico and Salas 1993: 34–40; IACHR 1997b). An extended insight into these problems will be the main purpose of the next chapter.

Judicial Ability to Protect Human Rights in the New Democracies  145 Finally, the politicization of the judicial systems in most countries of Latin America creates an institutional leverage that forces the courts to turn a blind eye when fundamental rights abuses are committed in politically important cases. This results in the pervasive impunity of the powerful and the influential responsible for human rights violations. Even when courts and judges are determined to act against the executives in particular cases, the lack of true independence of the judiciaries and judges of the region means that either overwhelming pressure is put on the judges or they simply end up being removed, purged or the entire court reshuffled.15 Ex presidents Alberto Fujimori in Peru and Carlos Menem in Argentina have provided the clearest examples of the capacity of executives to remove judges of any level, as was detailed in a previous chapter. But it is also the case that judiciaries or constitutional tribunals simply lack the political strength to make the executive to abide their decisions in particular cases. The same situation is perceived in some crucial Colombian Constitutional Court’s decisions— particularly those related to the transfer of human rights cases to the civilian court system, and the prohibition of active military officials from serving in the court martial, as seen in chapter 6—, since these rulings have simply been ignored or purposefully misconstrued by the executive, the legislature and the military court system (IACHR 1999: 34–43). As for the role of human rights agencies and NGOs in the process of protecting rights in these countries, their influence has been important in raising public awareness and attracting governments’ attention to addressing the issue in their public policies. Social actors for the protection of human rights—Ombudsmen, the press, NGOs and “defensores del pueblo”—, are indeed part of a system for the protection of human rights in Latin America. However, their capacity to enforce fundamental rights is clearly limited: in the case of Ombudsmen and “defensores del pueblo” offices, only non enforceable recommendations can be issued. In politically relevant cases, government officials can settle the issue by simply ignoring these recommendations, while enforcing the bulk of other recommendations to a certain extent. For example, in Mexico, the government acknowledges around 80% of the recommendations issued by the National Commission of Human Rights. The remaining 20% relate mostly to politically important cases or are ignored by agents at different levels of government. The same situation happens when international NGOs raise these issues, because the governments can ignore the recommendations when it is politically convenient to do so. Such was the case in the state of Guerrero, Mexico, where two environmental activists were imprisoned for 30 months despite the calls for their release by Amnesty International and Human Rights Watch. In the end, the two environmentalists—Rodolfo Montiel and Teodoro Cabrera— were released in 2001 through the direct intervention of President Vicente Fox. However, no authority was deemed to be responsible for the unlawful detention, and it was a political decision, not a judicial one, that finally resulted in the release of the detainees (UNCHR 2002:138).

146  The Unfinished Transition to Democracy in Latin America As welcome as they are for being a very necessary reinforcement for the protection of human rights, it is clear that “agencies of human rights are no substitute for the governments’ lack of political will to uphold human rights under the rule of law enforced by an independent judiciary.” (Panizza 1995:184) Also, governmental agencies lack the independence needed for public accountability and hence they are not free at all of undue influences that may be exerted in politically important cases, for example (Cleary 1997: 65). This is why I will focus on the reports and recommendations issued by international agencies that are part of the international regime of human rights protection. The Inter-American Regime of Human Rights Apart from the Universal Declaration of Human Rights of 1948, most Latin American countries adopted and ratified the 1966 International Covenant on Civil and Political Rights, and the 1966 International Covenant on Social and Economic Rights, during the 1970s, including all the countries of our sample. All these countries also supported the Vienna Declaration on Human Rights issued in June 1993, and have submitted to the scrutiny of the UN Commission of Human Rights (UNCHR), the UN Special Rapporteur of Human Rights, the UN Special Rapporteur on torture, and the UN Special Rapporteur on the Independence of Judges and Lawyers. However, the most relevant international regime of human rights norms for Latin American countries, by far, is the Inter American system of human rights protection.16 The Inter American regime of human rights includes the American Declaration on the Rights and Duties of Man, adopted months before the Universal Declaration of Human Rights, in 1948. The Organization of American States (OAS) is the international agency ultimately responsible for the application of the human rights norms in the Western Hemisphere. This is why the I-A Commission of Human Rights (IACHR)—with its headquarters in Washington D.C.—was created through a resolution adopted by the OAS General Assembly in 1959. The American Convention on Human Rights was adopted in San José, Costa Rica, in November 1969 and has been in force since July 1978, after the required ratifications.17 The Convention ordered the creation of the Inter American Court of Human Rights (The I-A Court) which started its operation in September 1979 with its headquarters in San José, Costa Rica.18 The Protocol of Buenos Aires entered into force in 1970, as an amendment to the OAS Charter, placing the IACHR as one of the principal organs of the OAS; while the 1988 Protocol of San Salvador was adopted as the regional treaty on social, economic and cultural rights (Harris and Livingstone 1998:1–28). Because proceedings are not necessarily legally binding decisions, significant amount of good faith and political will from governments are necessary for the enforcement of decisions by the I-A Court and the recommendations

Judicial Ability to Protect Human Rights in the New Democracies  147 issued by the IACHR. However, most observers agree that there is a sort of international moral pressure to put these decisions into operation. The most effective ways to exert this pressure have been by means of the IACHR Annual Report delivered to the OAS General Assembly, and through requested visits by members of the IACHR to particular countries while preparing special country reports (in loco visits) (Harris 1998: 3). The following list—although not exhaustive—resumes the I-A system of human rights protection. Inter American instruments • • • • • • • •

American Declaration on the Rights and Duties of Man (1948) Organization of American States Charter (1948) American Convention on Human Rights (1969)19 Protocol of Buenos Aires (1970) Protocol of San Salvador (1988)20 Protocol of Paraguay (1990) to abolish the Death Penalty.21 Inter American Convention to Prevent and Punish Torture (1985)22 Inter American Convention on the Forced Disappearance of Persons (1994)23 • Inter American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994)24 Inter American organs • OAS Secretariat. • OAS General Assembly. • Inter American Commission on Human Rights (IACHR, Washington D.C.)25 • Inter American Court on Human Rights (I-A Court, San José, Costa Rica)26 Human Rights protection mechanisms

• Individual petitions directed to the IACHR (more than 12,000 since 1965).27 • Recommendations issued by the IACHR. • Friendly settlements promoted by the IACHR. • Cases referred to the I-A Court by the IACHR. • Hearings in the IACHR and I-A Court. • Binding decisions issued by the I-A Court (only a few cases, so far) • Advisory opinions from the I-A Court to governments in particular cases (by request of the governments). • Precautionary measures ordered by the I-A Court or the IACHR.28 • IACHR Annual report to the OAS General Assembly. • IACHR in loco visits and Special Country reports.

148  The Unfinished Transition to Democracy in Latin America There is a general requirement that domestic judicial resources for individual petitions must be exhausted before being accepted by the IACHR. However, there are some cases considered in article 46.1 of the American Convention that are excused from this requirement if: 1. The domestic legislation of the State concerned does not afford due process of law for the protection of the right(s) that have allegedly been violated. 2. The party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them. 3. There has been unwarranted delay in rendering a final judgment under the aforementioned remedies (Cerna 1998:85). Common practice by the IACHR has been to declare the petitions admissible when a) there is evident ineffectiveness in the judiciary, b) if the judiciary is considered to lack independence, c) when there is a suspension of constitutional guarantees and incompetence of courts hearing “amparo” lawsuits, d) if a state of emergency continues to be enforced even after the relevant emergency is over, e) when special tribunals have been placed, f) when thousands of cases of disappeared persons are filed (as in Argentina during the 1970s), g) and when the life and liberty of the person o persons involved in the petitions are at risk. Intimidation of judges and attorneys, the indigence of the petitioners, and reasons of fear within the legal community so that a lawyer cannot be found, have also been considered further valid exceptions (Cerna 1998: 87–92). The former criteria means in practice that whenever the IACHR declares a petition admissible, there is a strong indication of State responsibility in fundamental rights violations (in cases that domestic remedies have been exhausted) and human rights violations (in cases excused from the requirement of exhaustion of domestic remedies).29 With the exception of the forced ‘disappearance’ of persons—which is not always coded as a crime in all domestic legal systems in Latin America—, virtually all other cases declared admissible by the IACHR deal with the violation of rights protected in principle by the domestic bill of rights. As the binding decisions issued by the I-A Court are less numerous than the cases declared admissible by the IACHR—not to mention the complexities involved in the procedures of every case—, for comparative purposes I will focus on the human rights violations considered in the IACHR Annual Reports delivered to the OAS General Assembly, as well as in the Special Country Reports produced after “in loco” visits to Brazil (1997), Colombia (1999), Ecuador (1997), Mexico (1998), Paraguay (2001), Peru (2000) and Venezuela (2003). Since 1998, the IACHR has systematically reported by country the number of petitions declared admissible, and although the data considered here come from 2000–2003 reports, the petitions relate to

Judicial Ability to Protect Human Rights in the New Democracies  149 fundamental rights violations committed during the previous decade, the 1990s. This data show a total of 136 petitions declared admissible by the IACHR detailing human rights abuses committed in the countries considered here for the period 1998–2003. They are indications of possible state responsibility and incapacity of the judicial systems to protect fundamental rights in these cases. When friendly settlements30 promoted by the IACHR are added, the number of cases increases to 179. Friendly settlements also indicate that domestic remedies are insufficient to protect fundamental rights, as the intervention of an external agency (the IACHR) was necessary to obtain the settlement. The number of cases by country and year are depicted in Table 7.3. Only Costa Rica, Uruguay, Bolivia and Venezuela show less than 4 individual petitions accepted by the IACHR and not a single friendly settlement during the period. Paraguay shows less than 10 cases all along, while all other countries originated more than 10 individual petitions accepted by the IACHR, the highest number being registered for Argentine and Peruvian

Table 7.3  Individual Petitions Declared Admissible by the Inter American Commission of Human Rights Plus Friendly Settlements, 1998–2003 1998

1999

2000

2001

2002

2003

Subtotal

F.S.

Total

Arg

2

10

5

2

4

5

  28

 4

  32

Bol

—

—

—

—

1

—

   1

—

   1

Bra

2

—

4

—

3

2

  11

 7

  18

Chi

2

—

1

1

3

6

  13

 2

  15

Col

2

 3

4

3

4

3

  19

 2

  21

Cr

—

—

2

1

—

—

   3

—

   3

Ec

—

 1

2

1

6

2

  12

22

  34

Mex

2

 2

1

2

—

4

  11

 1

  12

Par

—

 1

—

1

1

5

   8

 1

   9

Peru

7

 3

7

4

2

2

  25

 3

  29

Ur

—

—

—

1

—

—

   1

—

   1

Ven

1

—

—

3

—

—

   4

—

   4

Total F.S.: Friendly settlements

136

179

150  The Unfinished Transition to Democracy in Latin America Arg Bol Bra Col C.R. Chi Ec Mex Par Peru Ur Ven 0

5

10

15 Cases

20

25

30

35

40

Friendly settlements

Figure 7.1  Cases declared admissible by the IACHR, 1998–2003.

cases with more than 25 petitions each—increased to around 30 cases when friendly settlements are taken into account. Figure 7.1 strongly indicates that a considerable number of human rights violations were committed in the new Latin American democracies during the 1990s. The data is reasonably consistent with former reports on the independence of the judiciary and the low capacity of the judiciary to restrain the executive and the military. The top countries in these two departments are also those with less individual petitions accepted by the IACHR (Costa Rica, Uruguay, Venezuela and Bolivia), whilst two of the judiciaries with the highest levels of executive intervention during the period (Argentina and Peru) are also those with the highest number of petitions declared admissible by the IACHR.31 Brazil and Colombia confirm the often mentioned paradox of having “judiciaries powerful enough to overrule governmental decisions but incapable of satisfying basic citizens demands.” (Agüero and Stark 1998:10) The Gravity of Human Rights Violations in the Post-Transition Period An insight into the nature and gravity of rights violations demonstrates that Latin Americans in general are still dealing with serious human rights offences. Argentina has a striking record of miscarriages of justice relating

Judicial Ability to Protect Human Rights in the New Democracies  151 to the cases declared admissible by the IACHR. In these cases, judges have tended to either ignore key evidence, or to condemn the accused without proper proof or to tolerate procedural pitfalls that have nullified any due process guarantees. Most petitions claim obstruction of justice from the police, the military and even from political quarters. One case that stands out relates to the death of Carlos Saúl Menem Jr., son of the then Argentine president. He was traveling in a helicopter which crashed in March 1995. The petition was filed by his mother (who had recently divorced president Menem) and was declared admissible in February 2003 due to the irregularities—meaning obstruction of acts of justice—, committed by the Argentine Air Force, the Civil Aviation Board of Accident Investigation, the Forensic Medical Corps, the Argentine Federal Police and judicial authorities in charge of the investigation. The petition claimed that the helicopter was shot down before it crashed, and that the judicial investigation dismissed forensic evidence, including remains of the fuselage showing the bullet holes. The case was accepted although domestic legal procedures were still at hand; however, the IACHR stated that when these remedies “are unavailable as a matter of law, the requirement that they be exhausted is excused.” In this case, “the remedies the petitioners must exhaust are thus those that are available and effective.” The case is illustrative of how even members of the political elite can suffer from deprivation of due process guarantees. Another two dozen cases relating to less prominent Argentines were declared admissible by the IACHR from 1998 to 2003, dealing with similar breaches in the judicial system, indicating a pattern of miscarriage of justice and lack of guarantees for due process of law in Argentina. The execution of street children by death squads—not uncommonly carried out by off-duty policemen—, are by far the most common reported cases of human rights violations in Brazil and Colombia. In Colombia, 120 disappeared in 1993, and hundreds of extrajudicial executions by armed forces were denounced by Amnesty International in 1994 (Panizza 1995:177). Meanwhile in Peru 4,000 prisoners are awaiting trial or were tried under “low international standard.” (Panizza 1995: 177; AI 1993) In Colombia 1,542 members of leading trade unions have been killed since 1986. By 1997, no one had been made responsible. Moreover, in 1994 the president vetoed a Disappearance Law proposed by Congress and human rights organizations to place the crime under civilian jurisdiction, not to be judged by military courts any more. In Brazil, more than 1,000 peasants and rural trade union leaders have been murdered since the transition to democracy. Only in 30 cases have the criminals responsible been condemned (Barahona de Brito 1997: 221). Torture and ill-treatment of prisoners is common practice in Argentina, Chile, Colombia, Mexico, Peru and Venezuela, while peasants and rural union leaders are victims of violence from state agencies or landowners in Brazil, Mexico and Guatemala (Panizza 1995: 177–8). Hundreds of poor children and teenagers are killed year after year in Brazil and Colombia: “In

152  The Unfinished Transition to Democracy in Latin America the major cities of Brazil, hundreds of adolescents, street children and adults are killed or ‘disappeared’ every year by the police and death squads, which often include off-duty police officers. In Colombia, ‘death squad’ style killings of people regarded as ‘disposable’ is common in urban areas.” (Panizza 1995:178) In actual facts, a sort of paralegality exists in Brazil, Colombia and Venezuela, in the form of an “alliance between the forces of the state and those of private individuals and organized crime, often in collusion with local traders and politicians.” (Panizza 1995:184) For example, in 1995 it was officially recognized that around 30% of Rio de Janeiro police officers were participating in extermination groups (Barahona 1997: 221). The Brazilian Congress reported that 4,611 young persons (mostly black) were killed between 1990–93 (Cleary 1997: 71). Furthermore, 1,200 Brazilians were killed by death squads between September 1993 and June 1994, including criminal suspects, street children and slum dwellers (AI 1994a). As Holson and Caldeira state: “In Brazil, there is no doubt that violence against civilians and disrespect for law and human dignity have increased dramatically after the formal transition to democracy.” (Holson and Caldeira 1998: 287) In Ecuador, the biggest problems are the delay in the judicial service, corruption, instability of judicial appointments, dearth of public defenders, lack of premises and a secularly ill funded and understaffed justice service. There are just 12 public defenders in the entire country, four of them in Quito (2 million inhabitants) and four in Guayaquil (3 million inhabitants). According to government figures, approximately 70% of inmates were still awaiting trial or sentencing in 1997. Also, the police courts have absolved the defendants in over 91% of the cases (a total of 4,568 since 1985). Most human rights abuses include killings committed by members of the security forces, deaths of inmates whilst in custody, killings and harassment by paramilitary-style gangs (especially in rural Sierra, around 1993), and 25 to 30 cases of disappearances. In November 1994, in one of the very few cases not to go unpunished, the Supreme Court sentenced officers Guillermo Llerena and Victor Camilo Badillo to 16 years for murdering two teenagers, Santiago and Andres (known as the “Restrepo” case). President Rodrigo Borja also disbanded the “Criminal Investigation Service”, the police organization responsible for the crimes (IACHR 1997b). In Mexico, “impunity of torturers is the rule owing to the difficulty of initiating criminal action against them or the leniency of the judicial branch in such cases.” (IACHR 1998: 687) A Law against Torture was issued in 1997 by the Mexican Congress, however, up to December 2000 not a single case had been brought to court for such a crime, despite the repeated reports of torture carried out to extract confessions (Mexico, SG 2000). For example, the National Human Rights Commission recommended the trial and punishment of 2,035 agents of the federal government between 1990 and 1995. Usually, such recommendations are considered to be acknowledged

Judicial Ability to Protect Human Rights in the New Democracies  153 by the dismissal of the agents involved, but no judicial action has been taken against them (IACHR 1998). In the country report for Mexico in 1998, the IACHR issued a big number of recommendations (63 in total). Most of them address the insufficiencies in the judicial apparatus to adequately protect human rights. Some of the most significant are: to end “personality profiles” usually elaborated by the Attorney General’s office, which is a violation of the American Convention of Human Rights (paragraph 715), to eliminate the incrimination value of confessions made to the judicial police (723), to reject any testimony where there is reason to believe that this was obtained by coercion or by torture (724), to strengthen the autonomy and independence of the office of the Public Prosecutor, which is currently under the authority of the executive power (730), to encourage the speedy, effective and impartial investigation of complaints related to harassment of journalists, human rights defenders and members of community organizations (759). The protection of life also means the best effort of authorities to protect citizens from common crime. This is the interpretation of the IACHR in its rulings, especially when there have been well-known cases of negligence or inadequate handling of law and order offences. Such is the circumstance in Ciudad Juarez, in the state of Chihuahua, Mexico, where more than 200 young female workers have been murdered since 1993, with slow and ineffectual judicial action from the authorities. It is to be noted that not even the shift of the ruling party changed this appalling situation. Moreover there has been a clear pattern in the profile of the victims: poor young females, aged 15 to 25 years old, migrants from other Mexican states and working for assembly plants. There has also been a common pattern in the “modus operandi” of the killings and the disposal of the corpses. In a report on this issue, the U.N. Special Rapporteur on the Independence of Judges and Lawyers wrote: “The Special Rapporteur visited Ciudad Juarez (. . .) He was amazed to learn the total inefficiency, incompetence, indifference, insensitivity and negligence of the police who investigated these cases earlier (. . .) Although the special Rapporteur was assured by the special prosecutor that in all 104 files relating to the homicides of women had been presented to the courts since 1993, in his meeting with the judges of Ciudad Juarez, they did not appear to be aware of the status of those cases. The insecurity created by this lack of effective response has severely weakened the rule of law in Ciudad Juarez.” (UNCHR 2002: 163–164) However, the incapacity of the authorities to stop the murderers and bring the perpetrator to justice has encouraged the appearance of copycat killings, where others are taking advantage of the evident impunity to abduct young girls.32 The Mexican government established a Special Prosecutor to deal with the cases in 2001, but apart from the proposal to compensate the

154  The Unfinished Transition to Democracy in Latin America families of the identified victims, no satisfactory judicial action has resulted yet. In Paraguay, despite a Constitutional amendment in 1992—by which a human rights unit was created within the structure of the judicial power—, there are still large-scale detentions of peasants, as in the police operation “Ñemopoti” in August 2000. Torture seems to be a legacy of the Stroessner era, as in the case of César Baez Samaniego, a 27 year old, who was arrested in January 1999 when getting out of a collective taxi by traffic wardens and then hit on the head; he died the next day in hospital as a result of this attack. Also, more than 90% of the detained in Paraguay are still waiting for a sentence, including some detainees who are over 70 years old.33 This situation is clearly against the International Covenant on Civil and Political Rights (art. 9.3) where it is established that preventative prison must not be the general rule (IACHR 2001). In Peru, the Fujimori civilian-military regime was not quite committed to the protection of human rights. However, the extent of the abuses went further than the former military regimes. For starters, after the 1992 self-coup every security of office for judges of all courts was completely removed. Consequently, executive intervention in the judiciary reached new highs. For example, in 2000 more than 80% of the Peruvian judges and prosecutors held their positions on a “provisional basis.” In practice this meant that they could be suddenly removed if any judicial action against the executive was registered. This indeed occurred in numerous cases, most infamously the removal of three members of the Constitutional Tribunal from their posts who voted against the constitutional amendment in order to permit Fujimori’s reelection. Anti-terrorist legislation, military courts jurisdiction over civilians, and face-less judges have been the result of a virtual lack of judicial capacity to counteract the executive or to protect human rights. This led the IACHR to recommend the government “to adopt measures to allow regular courts to review, with guarantees of independence and impartiality, the proceedings of those who have been convicted pursuant to the anti-terrorist legislation.” (IACHR 2000) Finally in Venezuela, during the 1990s, excessive use of force and harsh conditions in federal prisons left around 150 inmates dead between 1994 and 1997.34 Furthermore, the Venezuelan state failed to comply in full with rulings of the I-A Court, including the order to compensate victims of the “Caracazo” in 1987. However, the level of fundamental rights protection has deteriorated since Hugo Chavez took up the presidency in 1998, even though the 1999 Constitution incorporated the usual bill of rights that is common to other Latin American constitutions, plus rights for the protection of children, environmental rights and rights to work. In addition a proper “habeas corpus” mechanism was introduced, along with the “habeas data” and “amparo” procedure. Other promising features include the limitation of military justice, crimes against human rights do not expire, and there is a prohibition of amnesties or pardons for serious human rights violations.

Judicial Ability to Protect Human Rights in the New Democracies  155 Despite these high constitutional provisions, up to the year 2003 only 250 judges out of 1,772 were appointed through competitive examinations as provided for the Constitution. This situation has left 84% of judges appointed on a provisional or temporary basis, thereby lacking of any security of tenure. Also, since 1998, there have been death squads operating on the states of Anzoategui, Falcon, Portuguesa and Yuracay, with a toll of 100 killings. These groups have apparently operated with the acquiescence of the state police, while judicial investigations of the deaths have not advanced beyond the preliminary stages. Para-police groups operate in seven states of Venezuela, at a time when the pro-Chavez “circulos bolivarianos” commit frequent acts of violence against persons of different political views to theirs. This climate of harsh political intolerance has led to cases of constant attacks and intimidation against journalists and human rights defenders. Even before the events of the “coup d’Etat” attempt in April 2002, when dozens of lives were lost and more than 100 people were injured, the political environment had already shown corrosive effects on the capacity of the Venezuelan state to protect fundamental rights (IACHR 2003: 161–220). Table 7.4 resumes the most common human rights violations committed during the 1990s, sorted by country. Recommendations The IACHR has issued recommendations of a general nature. These tend to underline the need for a deep reform of the judicial systems: more efficiency, independence and accessibility of the court systems,37 and humane treatment by the police and the penitentiary system are the main points of these recommendations. All are applicable to the entire selection of countries, except for Costa Rica: 1. To respect the independence of supreme courts and constitutional tribunals, 2. to enforce new and more efficient procedural systems, 3. to end the trial of civilians by military courts, 4. to reinforce guarantees of due process of law, 5. to provide hearings and sentences within a reasonable time, 6. to reduce inmate population waiting for sentence, 7. to eliminate the incriminatory value of confessions made without the presence of defender lawyers, 8. to strengthen the autonomy of the general attorneys, 9. to investigate and punish criminal acts committed against the indigenous population, 10. to combat and dismantle private armed groups, 11. to bring all anti-terrorist legislation and related laws into the American Convention of Human Rights,

156  The Unfinished Transition to Democracy in Latin America Table 7.4  Most Common Human Rights Violations During the 1990s Country

Human Rights Violations

Argentina

Miscarriage of justice in tens of cases. Lack of guarantees for due process of law. Dismissal of key evidence in politically relevant cases. Sentences without relevant proof, common practice.

Bolivia

90% of inmates in provisional detention.35

Brazil

Hundreds of cases every year of street children and adults executed by death squads.

Colombia

Unpunished killings of trade union leaders. Disappearance of unwanted (indeseables) persons by death squads. About 35,000 murders a year, most of them still unpunished.

Chile

Military tutelage of justice. Incapacity of civilian courts to judge abuses committed by military personnel.

Ecuador

Public defense is virtually non existent due to the lack of public defendants. 70% of inmates in provisional detention.

Mexico

Politically important cases decided by political leverages over the judicial system. Anti-guerrilla activities and paramilitary groups in the states of Guerrero and Chiapas. Unpunished murders of human rights activists. Common and unpunished practice of torture in judicial investigations. Ineffectual judicial action since 1993, concerning 200 unsolved murders of young females in Ciudad Juarez, Chihuahua. 95% of impunity for all types of crime.

Paraguay

Common and unpunished torture in judicial investigations. 90% of inmates still awaiting sentence.

Peru

Anti-terrorist laws. Face-less judges, usually military personnel without proper legal instruction. Military courts judging civilians. Arbitrary detention followed by “disappearance” of persons.

Uruguay

80% of inmates waiting for sentence.36

Venezuela

84% of judges with temporary or provisional status. Failure to comply with 13 Inter American Court rulings, the “Caracazo” case included. More than 150 inmates awaiting sentence died in different massacres, 1993–1997. Death squads and “social cleansing” para-police groups are operating in seven states since 1998.

Judicial Ability to Protect Human Rights in the New Democracies  157 12. to investigate and punish acts related to the harassment of journalists, human rights defenders and members of community organizations, 13. to act in order to eliminate or minimize impunity, including unpunished common crime. Further recommendations can be added to these: to promote a general review of the “amparo” lawsuit system in order to confer extensive effects to this mechanism (“erga omnes” effects). It is of the utmost importance to respect the most important feature of an independent judiciary: the immovability of judges of low and high courts. The improved training of judges, lawyers and attorneys is urgently needed, in order to make them able to quote, consider and implement the regional and international regime of human rights protection. Considering the overall conditions of feeble judicial independence, discrimination in practice—according to economic status, language, race, ethnicity and gender—, lack of impartiality and court system inefficiency, the Inter American and international mechanisms for human rights protection are extremely relevant and necessary. However, few or no reference to international instruments of human rights protection are found in local courts, due mainly to the lack of training of lawyers and judges, but also to the continuation of former parochial judicial procedures in Latin American judicial systems. Conclusions For the common citizen, and particularly the poor and underprivileged, the brand new democracies in Latin America are not so different from the authoritarian systems in protecting fundamental rights, when it is clear that the judicial mechanisms for the protection of rights continue to be as jammed as before. There has been, however, a change in the pattern of human rights violations. Authoritarian and military regimes (including the civil-military Fujimori government in Peru) committed massive violations and there were hundreds or thousands of forced disappearances. Nowadays, the bulk of rights abuses are those resulting from inefficiency, politicization of the judicial system, corruption and impunity (Cancado 1998: 418). The discriminatory bias of the judicial system against the indigenous population, the poor, the young and women, is similar in both oppressive and pseudo democratic regimes. Despite a different pattern of human rights abuses, the gravity of the crimes are as bad as before, or even worse in some countries (notably in Brazil and Colombia). Hundreds of cases of extrajudicial killings, arbitrary detention, and torture as a common part of judicial investigations, violence and threats against judges, lawyers and witnesses are reported yearly by human rights agencies. The rights to life, liberty, freedom from arbitrary detention, the right to a fair trial and guarantees of due process of law are

158  The Unfinished Transition to Democracy in Latin America little protected in these countries, even for the middle classes and the rich whenever a particular case has political relevance for the local or national authorities. After the former revision of the capacity to protect fundamental rights, we can conclude that in Latin America (except Costa Rica) there is a structurally biased court system against the poor, indigenous populations and the underprivileged (women and the young population included) firmly in place. In this environment of the pervasive and uneven application of justice, the activities of NGOs, “Ombudsman” offices, human rights governmental offices and international agencies of human rights are extremely necessary and very effective when local authorities prove willing to accept and implement the issued recommendations. Nevertheless, they are not a substitute for a proper court system where human rights protection should be paramount. International oversight and especially the Inter American System of human rights protection constitute a promising regime towards international accountability for human rights abuses. But the real change should come from within the new democracies in Latin America, in the form of strong judicial systems, able to cope with the republican and liberal task of providing in practice what has been provided in their own constitutional bill of rights: the guarantees of due process of law for the true protection of fundamental rights.

8 Corruption, Inefficiency and Violence in Latin American Court Systems

Besides the undue influence of the executives over the judiciary exerted during the 1990s, and the evident weakness of the judicial power to bring the military into account, the rule of law in the new Latin American democracies cannot be considered complete when the judiciaries of the region are commonly reported to be stuck in a state of disarray. After the transition to electoral democracy, judicial power has not evolved towards liberal democratic standards in the new regimes of Latin America. This can be seen in examples of arbitrary justice, often prone to inefficiencies, discrimination, corruption and even incapacity to provide effective protection against violence and threats suffered by judges, prosecutors and lawyers. These aspects can and usually do pervert the course of justice in most countries in the sample, with the exception of Costa Rica. In a comparative perspective, some of the countries included in this research show particular weaknesses in one or another of these aspects: corruption, inefficiency or violence against judicial functionaries. Despite the judicial reforms that accompanied the transitions to democracy in the 1990s, the judicial systems are not improving at the expected pace. This is a serious downside of the new regimes, one that hinders the completion of the democratic consolidation process. In this chapter, I will analyze to what extent the shortcomings of the judicial systems affect the rule of law by means of the misapplication of rules.1 Some authors have suggested that this state of things has been consciously organized and maintained by elite groups, as a means to continue their domination over the lower classes. In this “liberal elitist” strategy, the law is not used much as to punish wrongdoers as to maintain oligarchic predomination. However, I will argue that shortcomings such as widespread corruption, inefficiencies and violence in the court systems negatively affect the upper classes too, due to the high social costs involved in law and order consequences and economic development matters. The chapter is organized in four sections. The first part will revise the problem of corruption in Latin American societies, and the extent to which courts are prone to corrupt practices as well. The second part will deal with current procedural and legal practices to illustrate the impact that corruption and circumventions to the law infringe on the rule of law. This tendency

160  The Unfinished Transition to Democracy in Latin America is also observable in secondary laws inconsistent with the constitutional principles, since are permitted to twist in practice what the constitutional text has provided for in principle. The third part will examine in further detail assorted inefficiencies that create biases in the application of rules, and allow impunity for criminals who know how to take advantage of these shortcomings. Finally, the fourth part examines another pressure on people caught up in the judicial system: violence and threats, in order to favor drug dealers, guerrilla movements, organized crime and even politicians by force. Corruption, inefficiencies, circumvention of law and intimidation seriously curtail the full implementation of the rule of the law in post transition Latin American societies—along with the structural obstacles to the independence of the judiciary, the capacity to make the executives and militaries of the region accountable, and the capacity to protect human rights, already analyzed in previous chapters. Corruption in the Courts: The Auction of Justice in Latin American Court Systems For Klitgaard, corruption creates political, economic, moral and material harm to all societies. As a broad definition, corruption is the “inducement by means of improper considerations to commit a violation of duty.” Improper considerations such as bribes, speed money, kickbacks, extortion, “syndicated corruption,”2 influence peddling, “arrangements,” embezzlement of funds, nepotism, cronyism, and pool of contractors, among others, are practices that are found in almost every society.3 However, most important for the rule of law is the kind of mechanisms for corruption control that are effectively in place in every polity. As Klitgaard puts it, corruption is like an illness, and “like illness, corruption will always be with us (. . . but) we can do better in controlling corruption.” (Klitgaard 1988: 7) As it is commonly acknowledged, with few exceptions Latin American countries are not amongst the best in controlling corruption practices in general, and are similarly poor controllers of corruption in the courts as well. The Latin word for corruption, “corrumpere” (in the sense of political corruption) implies the co-participation of two persons—one of them a government official—in order to deviate public resources or to influence government decisions for their mutual private benefit. It is, to induce or accelerate the “putrefaction” process (the primary meaning of the word “corruption”) of government action by means of a dishonest agreement between a private citizen and a government officer, or between two governmental officers. The wider definition of corruption in this sense is: “the selective distribution of what are supposed to be entitlements in exchange for material or political profits.” (Geddes and Ribeiro 1999:24) This is one of the main characteristics of the so called patrimonialist state, as a category coined by Max Weber referring to societies where practices of appropriation of public resources

Corruption, Inefficiency and Violence in Court Systems  161 for private benefit are common, publicly known and even somehow socially justified. In most countries of Latin America, corruption practices have been a constant part of the colonial heritage from the Spanish and Portuguese bureaucratic tradition, but are also an important part of the rent-seeking character of oligarchic and exclusionary regimes. This character is precisely the source of corruption encroachments that is so commonly reflected in reports and indexes about corruption among the countries of the region (Geddes 1994: 18). The impeachment of presidents Carlos Andres Perez in Venezuela and Fernando Collor de Mello in Brazil for corruption charges in 1992 and 1993 (see chapter 5), and the exposure of corruption videos implicating Montesinos and Fujimori in Peru, 1999, or even the denunciation—followed by the absence of judicial investigations—towards corruption of highest officials in the Menem government in Argentina, are but a small piece of evidence of how deep corruption practices can permeate the entire political system (Buscaglia and Domingo 1997:12). However, a more complete picture is captured by the annual Corruption Perception Index (CPI) published by Transparency International. The CPI shows perceptions of the degree of corruption as seen by business people, risk analysts and the general public. It ranges from 10 (highly clean) to 0 (highly corrupt), while at least three surveys are required for a country to be included in the CPI. Figure 8.1 shows the average CPI for 1998–1999 for the twelve countries considered here. Only Chile showed a robust tendency of corruption control, with a CPI of 6.85.4 Four countries (Costa Rica, Peru, Uruguay and Brazil) registered scores between 4.0 and 5.5 (out of a possible 10), which is poor

8 7 6 5 4 3 2 1 0

ARG

BOL

BRA

COL

CR

CHI

EC

MEX PAR

PERU URU

VEN

Figure 8.1  Corruption perception index, 1998–1999. Sources: www.​transparency​. ​org​/​cpi​/​1998​/​cpi​1998​.​html, www.transparency.org/cpi/1999/cpi1998.html 10 = highly clean, 0 = highly corrupt.

162  The Unfinished Transition to Democracy in Latin America in general but outstanding in comparison with the other countries of the sample.5 The costs of corruption are hard to calculate precisely due to the concealed nature of the actions; however, some good efforts have been carried out recently. For developing countries, Prillaman estimates that weak judicial systems cost yearly at least 15% of the momentum of economic growth (i.e. 2.6% instead of 3% growth of the GDP growth), not considering the cost of discouraging investors who would otherwise be interested in starting business if fewer hidden transaction costs (such as bribes) were involved (Prillaman 2000: 3). In Mexico, for example, the National Poll on Corruption and Good Governance 2003 detected 101 millions acts of corruption (mainly bribes, known in Mexico as “mordidas”—meaning “bites”) between October 2002 and October 2003. The average cost was 107 pesos (about 10 dollars) per “mordida”, accounting for a total of 10.6 billion pesos (nearly 1 billion dollars) during that year (Transparency International 2003).6 Evidently, not all acts of corruption are detected, but the costs of those that are reported give us a good idea of the huge magnitude of the problem of corruption, in economic terms, for developing societies. According to the World Bank, 60% of the gap in income between Latin America and Southern Europe in the year 2000 was accounted by weak rule of law, corruption and ineffective public administration on the Latin American side (Ungar 2002: 235). In order to control corruption, policies range from bureaucratic controls (such as compulsory annual statements of assets for government officials) to summary dismissal from public posts. It has been suggested that reducing the discretion of government officials might help in reducing corruption as well, but this usually tends to concentrate discretion (and corruption opportunities) in higher levels of government. The increase of salaries for governmental officials is usually included as a principal component of every anti-corruption policy. However, increases in salary are not the solution when at the margin the expected benefits of being corrupt will still out weight the expected costs. In any event, the increases should be accompanied by another set of measures to reward honesty and punish or deter corruption within government agents. And of course, the main corruption control mechanism is an independent, efficient and impartial court system. Just as was reported by Klitgaard, a reduction in the crime of corruption is easier when penalties are more certain rather than more severe, and such a certainty is only possible through the action of the courts (Klitgaard 1988: 70–77). Within a consolidated liberal democracy, political corruption is a crime to be punished though the court system. Even if in cultural terms, certain corruption practices can be considered permissible to some extent—for example, in Latin America, to be part of a clientele network is not legally wrong, but a means of survival for most poor communities—, it is also true

Corruption, Inefficiency and Violence in Court Systems  163 than no Latin American country (and possibly no country in the world) has ever considered bribes as legal. Bribes do not bare any cultural misinterpretation, as they are socially and legally condemned in Latin American societies. Then, the involvement in such practices, either as bribe-taker or as bribe-giver, should be punished by the court system. The same applies to corruption practices such as influence paddling, kickbacks and syndicated corruption. Sadly, Latin American courts—save those of Chile, Costa Rica and Uruguay—are commonly reported to suffer from the same illness of corruption that they should be trying to punish and prevent. From this point of view there is a double perspective of the judicial system towards corruption, the need to control its own “internal corruption”— corruption practices in court systems—and to sharpen its capacity to control and punish acts of corruption happening outside the judicial system—or “external corruption.” In this sense, no court system that suffers itself from wide spread corruption practices and has a poor record of performance can be expected to apply effective anti-corruption laws (Binder 2002). No indexes of court corruption are reliable enough to make comparisons among the countries considered here, but numerous reports of court corruption provide evidence of the inadequate capacity of Latin American judicial systems to deal with corruption practices. In fact, corruption is firmly entrenched in most judicial systems, which in practice means a pervasive bias towards the rich and the wrongdoer, compromising the principle of equality in the application of the law. The rule of law is seriously incomplete when the court system allows corruption practices that twist or simply ignores the rules, as result of a dishonest agreement that alters the course of justice. Prillaman calculates that in Latin America, 15% of the total of court costs go to corruption practices, as a bias that acts completely against the poor (Prillaman 2000: 26). Payoffs are estimated to constitute between 8 and 12% of the costs of going to court in Argentina, Brazil, Ecuador and Venezuela (Buscaglia, Dakolias and Ratliff 1995:11). It is no coincidence that the 2004 Prize for Best Investigative Report on Corruption in Latin America and the Caribbean—granted by Transparency International— went to the Ecuadorian journalist Arturo Torres from “El Comercio”, who revealed illicit enrichment of a Supreme Curt justice and in turn unmasked other corrupt judges, while shedding light on the political meddling of the Ecuadorian judiciary.7 To some extent, an “auction of justice” is the common practice in most court systems: lawyers from both sides usually require money from their clients to spend in obscure corners of the judicial systems: speed money is needed even to have access to files (otherwise, they could be “lost” for precious days), public ministries have complete discretionary power to dismiss or simply ignore the prosecution of petty offences, while “ex parte” communications—the meeting or communication of judges with only one of the parties in the litigation, with the exclusion of the other side, which of course creates almost unlimited opportunities for corrupt behavior—are legal in

164  The Unfinished Transition to Democracy in Latin America Ecuador and Mexico, and commonly recurred to by lawyers and judges in Argentina, Bolivia, Colombia, Paraguay and Venezuela. In particular, in Venezuela the judicial system has been reported to be dominated by “judicial tribes”—networks of judges, officials, lawyers and court employees that “guarantee” the outcome of a judicial process in exchange for a monetary reward—while Argentine, Ecuadorian and Mexican judicial systems are known to host similar syndicated corruption groups 8 (Dakolias 1993:17; Rico and Salas 1993: 47; UNDP 1998: 62; Ungar 2002:160). In Argentina, by the end of Menem’s second term, well over 100 top officials and their relatives were charged for acts of corruption and were acquitted by the courts (Ungar 2002:147). Even in Chile, although the police corps “Carabineros” are not usually perceived as corrupt, judges and lawyers do not attract the same good opinion in this respect. In Bolivia, it is reported that corruption is common in the form of bribes and political favors (Stotzky 1993: 8; Vanderschueren and Oviedo 1995: 122; Rodriguez Veltze 2000). While in Peru, “there are numerous videos in which top judges appear receiving favors and rewards in exchange for decisions in certain cases. In some other videos, Montesinos (the main political ally of ex president Fujimori) was recorded offering judicial solutions to his cronies.” (De la Jarra 2001) Paraguay is constantly reported as being the worst case of corruption in the political system. The “coimas” (bribes) are considered a standard procedure within the judicial power, and everyone would rather “coimear” (pay the bribe) than to pay professional lawyers or file lawsuits (Bogarin 2000: 4). For its part, in Colombia, 96.8% of the people in a 1995 national poll believed judges could be bought (Springer, 1998: 28). “Ex parte” communication is completely illegal in the United States and in European court systems. This practice evidently allows the judge to be offered bribes, kickbacks, influence peddling or undue rewards for ruling in a certain way on a particular case. Whenever such corruption is permitted in the court system, and is allowed to influence the outcome of judicial decisions at any level, the very notion of impartiality of the court disappears, giving way to complete judicial farce—because it would be partial, in fact. The result would be an auction of court decisions in exchange for undue retributions, either money, assets, favors, cronyism or political rewards. In some cases, “ex parte” communications can be two-sided, and the profit is doubled by these means; for example when the prosecutor bribes to win the case and the accused is condemned, but at the same time the defense bribes to reduce the incarceration period. “Ex parte” communications also happen at the prosecutor level, since in some Latin American judicial systems the public ministry acts as a first instance judge (as in Mexico and Paraguay). In these cases, undue counsel by the public ministry can be given to one of the two sides in exchange of a bribe, or the lawyer from one side can have access to the file and the evidence, while the other side can be denied access to the same information and evidence (Buscaglia, Dakolias and Ratliff 1995: 7; Rico and Salas 1993: 48).

Corruption, Inefficiency and Violence in Court Systems  165 Court labyrinths can be easily deciphered by the rich, the privileged and the influential in Latin America (except in Costa Rica, Chile and Uruguay). The common assumption for politicians is the saying: “for my friends, law and grace; for my enemies, just the law,” which is in itself a denial of the impartiality that must prevail in court systems within a liberal democracy (Buscaglia, Dakolias and Ratcliff 1995: 3). However, the corrupt edge of courts and prosecution can as easily be used by criminals, dodgy lawyers, paralegals, occasional wrongdoers and, of course, by drugs barons and criminal organizations. In particular, the corruption power of drug dealers is commonly quoted as one of the main explanations for their impunity and apparent resilience in Latin American societies. Since the 1970s, drug trafficking has been so profitable in Latin America that prosecutors, lawyers, judges and even top government officials and military personnel have been found themselves involved in corruption scandals. In Colombia and Mexico in particular, the corruption power of drug dealers produces public skepticism about a minimum decorum in the application of rules. Drug dealers are regularly tipped off whenever a large scale operation to capture them is put in motion, while are set free by judges in record time if captured, or they easily escape from prisons. Equally the drugs captured and secured are commonly “stolen” from safes despite being surrounded by dozens of guards.9 The corruption power of drug cartels and criminal organizations is also present in Bolivia, Peru and Venezuela, but can be found in every country on the drug route towards the huge US market. Latin American courts are especially ill-prepared to deal with this formidable source of corruption, but the evidence shows that they are also ill-prepared to act as the watchdog they are supposed to be against corruption practices at any level in Latin America (Buscaglia and Domingo 1997:11; Domingo 1999:158). Circumventions of Laws: Secondary Laws, Unapplied Laws and Ad Hoc Tribunals In Latin American law systems, it is not enough for a certain rule to be proclaimed in the constitutional text. To be enforceable, it is necessary first that Congress issues a law specifically designed to detail the application of the constitutional norm. These are called “organic laws” or secondary laws, supposedly required to follow the primary legislation in time and purpose, but in practice this is not always the case. Common ways to circumvent constitutional laws in Latin America include executive decree laws—by which legislative power is bypassed—, but also by issuing secondary laws that are inconsistent with the primary-constitutional law, or by simply postponing the issuing of secondary laws. In the last two cases, this means that the constitutional law cannot be invoked in court as long as the secondary law is

166  The Unfinished Transition to Democracy in Latin America not properly issued by Congress. By these means, there is an appearance of rights protection by the legal system, while in practice the secondary laws undo this protection, or the delays in issuing secondary laws simply deny in practice the application of these norms in common litigation (Anglade 1994: 244–5). The reason why a political system committed to protect rights in principle by including them in the Constitution is also so resilient to protecting rights in practice by issuing inconsistent secondary laws, or by postponing these secondary laws, is a question of Latin American political culture and political practice. Honorable constitutional laws are adopted by pompous politicians and are exhibited in speeches and summits as proof of the rights protection character of the political systems. However, secondary laws are designed to deal more closely with political realities, taking advantage to the fact that inconsistencies within the primary law are far more difficult to detect or to denounce in secondary laws. Of course, this kind of inconsistency could be remedied by the action of the judicial power, but it would require an independent and strong judicial branch, able to reverse the issuing of inconsistent secondary laws. As it was analyzed in chapter 5, the capacity of the judiciaries of the region to check the other two powers is extremely limited. Until such a counterbalance by the judiciary is in place, the constitutional dispositions betrayed by secondary laws in Latin America will continue, in a modern version of the colonial say of “respétese, pero no se cumpla” (law to be respected, but not acknowledged).10 Examples of circumvention of laws during the 1990s are the following: Argentina: Emergency executive decrees during the Menem government. Brazil: Constant reissuing of laws, allowing them to be implemented even if Congress rejects them repeatedly. Colombia: Decree laws. Mexico: Organic Law on Freedom of Religion, 1992, far more restrictive than the liberal constitutional reform on freedom of religion passed in 1991. Peru: Decree laws under Fujimori. Venezuela: “Law of Vagabonds and Crooks” in force since 1939, strengthened in 1943 and 1956. 500 people were arrested each year under this Act, 100 without trial at any time. The Act was ruled unconstitutional only in 1997 by the Supreme Court (Ungar 2002:110). Un-enforced laws are also found in Latin American societies, as an “honorable” way of dealing with social problems in principle while not really in practice. It has been also a way of putting off troublesome issues indefinitely, such as abortion or the death penalty issues. In most Latin American countries, abortion is unlawful, due to their character as conservative catholic societies and to the political pressure of the Catholic Church and Catholic

Corruption, Inefficiency and Violence in Court Systems  167 groups. In practice, even if year after year hundreds of thousands of abortions take place in Latin American countries, virtually nobody is taken to court for this crime. Evidently, the circumvention of laws in this case has to deal with the problematic presence of the Church as an actor not always willing to accept the most liberal aspects of a secularized society and a secularized state. In Mexico, for example, for decades it was unlawful to organize public displays of religious fervor (procesiones), however in practice such displays have been tolerated by local and national governments as long as the Catholic church authorities maintained the terms of the arrangements between the Church and the state back in the 1940s.11 Other laws that are seldom enforced or not enforced at all in the region include tax evasion laws, anti-corruption dispositions, laws against torture and white-collar crime laws—especially rules dealing with money laundering, bank fraud and insider trading on the stock market. Possibly the most notorious example of ill enforcement of laws is the lack of will of Latin American authorities to prosecute and punish copyright and intellectual property laws in the region. The protection of intellectual property rights is not strongly enforced in Latin American precisely because most of this property belongs to foreign multinationals (mostly American in this case). Although local laws are often quite tough against unauthorized copies and improper appropriation of the brands, designs, pictures, music, images, software and other intellectual property, it is not really an aspect of the law that most Latin American governments are eager to punish. Now and then, some spectacular operations to recover and destroy videos, compact discs, software and merchandise that do not conform with copy-right laws are executed, to give the impression—especially to foreign investors—that these laws are really enforced, but then again this is more the exception than the rule in these countries (Prillaman 2000: 169; Carothers 2001: 11). Other ways of transgressing the due process of law is by means of “ad hoc” tribunals, other than the military courts analyzed in chapter 6. In addition to the military courts, there are special tribunals under the control of the executive that clearly do not conform to the requirements of independence and impartiality desired in courts within a liberal democratic political system. In fact, they constitute a parallel system of justice under the executive branch (Prillaman 2000:20). Special courts are at odds with the rule of law because they provide the executive with the opportunity to prosecute people before a special tribunal on their own terms, bypassing the protections found in ordinary court systems (Shetreet and Deschenes 1985: 616). The most outrageous of these tribunals are the Agrarian courts (which apply Agrarian reform dispositions), labor tribunals (dealing with the freedom of association and the demands of trade unions) and administrative tribunals (that deal with conflicts between state agencies). In all three cases, the tendency of the executive gives a decisive impromptu in the overall tendency of the court decisions, which are much more politicized than the civil court system. A clear example of this politicization of special courts are the

168  The Unfinished Transition to Democracy in Latin America Mexican labor tribunals (Juntas de Conciliacion y Arbitraje) that tend to declare valid industrial actions or strikes in accordance with the tendency of the government. Labor courts have approved more strikes during left wing governments (Lázaro Cardenas 1932–40; Adolfo Lopez Mateos 1958–64; Luis Echeverria 1970–76) (Gonzalez Casanova 1980) than during right wing governments. Especially sharp was the curtail of strikes approved by the labor courts during the government of Carlos Salinas, prior to the signing of the Free Trade Agreement by Mexico, the United States and Canada. Other countries that have “ad hoc” tribunals of this sort are: Argentina, Bolivia, Brazil, Colombia, Chile and Uruguay. Ecuador, for example, has special tribunals for police corps, known as police judges (Jueces de policía) (Rico 1997: 45). The circumvention of laws by means of twisted or delays in issuing secondary laws, unapplied laws or “ad hoc” tribunals tends to distort the constitutional dispositions in favor of the politicians, the influential and the powerful. Such outcomes are clearly inconsistent with the rule of law; they are also indicators that indeed the judicial systems have not sufficiently evolved to contribute as substantially as they should to the consolidation of the new democracies in Latin America. Vested interests and clientelism are the main reasons why the “strong rooted political habit of circumventing the law” still continues all over the region (Buscaglia and Domingo 1997:11). Low Quality Judicial Service: Inefficiencies in the Latin American Court Systems Whenever a judicial system fails to provide, in an impartial and prompt way, the protection and remedies of the law to common citizens, trust in the judicial branch and in the democratic process altogether fades precisely because the goods of democracy are not delivered to match the expectations created at the start of the democratic transition. In this sense: “More than trust in specific leaders or governments, enforcement of the law—by and even against state agencies—captures the essence of democracy legitimacy.” (Ungar 2002: 20) For Buscaglia and Domingo, an effective judicial system must offer a) relatively predictable and consistent decisions, b) access to the courts for all members of the population regardless of income level, c) reasonable sentencing times, and d) adequate court-provided remedies (Buscaglia and Domingo 1997: 5; Buscaglia, Dakolias and Ratcliff 1995:6). The usual indicators of the “mechanical efficiency” of the judicial sector are: the budget allocated, number of cases filed, disposed and pending per year, the clearance rate, the average duration of cases, and the number of judges per 100,000 inhabitants (Grimheden 2001:6). In this section, all these indicators will be reviewed for the Latin American countries considered, underlying the obstacle that judicial inefficiency implies for the democratic consolidation process, by means the uneven application of the rule of law.

Corruption, Inefficiency and Violence in Court Systems  169 First of all, access to the judicial apparatus cannot be taken for granted in the Latin American context. The remoteness of the courts, plus social, ethnic, linguistic and cultural barriers are huge issues in countries with large indigenous communities. The “indígenas” account 70% of the population in Bolivia, 40% in Ecuador and Peru, 10% in Mexico, 6% in Chile and between 1.5% to 3% of the population in Colombia, Paraguay and Venezuela. For these communities, “the uneven practices of judicial and bureaucratic branches of the states have been particularly disadvantageous to indigenous peoples who often remain subject to the political power of local and regional elites.” (Yashar 1996: 92) Around 30% of towns in the Amazonas region did not have a single judge in 1994, while in the Peruvian countryside the average radio to reach a court house is 33 miles. In such circumstances, Brazilian Amazonians and Peruvian peasants may find courts irrelevant as conflict resolution mechanisms (Prillaman 2000:18, 93; Buscaglia and Domingo 1997: 15). The situation is similar in large areas of Bolivia, Colombia, Ecuador, Mexico and Venezuela, and in all these countries the number of judges of indigenous background is minimal (Rico and Salas, 1993: 30). In Mexico, for example, there were no prosecutor offices in the zone of Chiapas (the Cañadas) where the neo-zapatista movement emerged in 1994, only in the main urban areas of the capital, Tuxtla Gutierrez, and Tapachula city, on the border with Guatemala. This is also the case for indigenous detainees in the states of Chihuahua, Oaxaca, Hidalgo, Guerrero and Puebla, and all over the country, who can wait up to a year just for the authorities to arrange for an official interpreter (UNCHR 2002: 152). As a recent Pulitzer prize winning article describes: “Mexico has more than 148,000 communities with fewer than 100 residents, many of them isolated (. . .) More than 25 million Mexicans— one quarter of the population—live in communities of 25,000 people or fewer. Governmental officials say it is simply too expensive to run roads and electric lines to many of them, let alone provide police, prosecutors and judges. As a result millions of Mexicans live in places that remain largely beyond the law.” (Sullivan 2002)12 On the other hand, the court system should be reachable also in economic terms. Fees and costs entailed in asking for the protection of the courts should not act as a barrier to the access of the poor to the judicial system. For most observers, what it is needed are private or public financing schemes (Rowat 1995: 225). However, even where public defense schemes are provided as part of the legal framework, desperately under staffed and under funded public defense offices are common feature of Latin American realities. In 1999, there were just 159 public defenders for the whole of Venezuela, a country of 24 million people. In Ecuador, there are just four public defenders in Quito and Guayaquil, with 2 and 3 million people respectively. In Mexico the Institute of Public Defense was created only in 1995, with

170  The Unfinished Transition to Democracy in Latin America 467 public defenders for a country of 100 million inhabitants. In Colombia there are 254 defenders for the whole country, while in Brazil, only half of the states have organized public defense. Actually, only Costa Rica offers a sufficient number of public defenders to fulfill the legal right to a counselor for everyone, regardless of income level (Vandershueren and Oviedo 1995: 63; Springer 1998:28; Buscaglia, Dakolias and Ratliff 1995: 8; UNCHR 2002:95; Ungar 2002: 201). As for the number of judges available to the population, the recommendation of the United Nations is 25 judges for every 100,000 inhabitants (the equivalent of one judge for every 4,000 inhabitants; Ungar 2002: 153). Table 8.1 gives the data for the twelve countries in the sample considered here, and all are far from the United Nations recommendation. The closer to this standard was Uruguay, with 19 judges per 100,000 inhabitants in 1993, and Costa Rica with 16 judges per 100,000 inhabitants in the year 2001. All other countries have less than 11 judges for every 100,000 inhabitants. The lowest figures in 2001 correspond to Mexico (2.7), Brazil (3.6) and Chile (5). It has been indicated that there is no apparent correlation between the number of judges and efficiency of the courts—the case of Chile would be a proof in this sense. However, the scarcity of judges in the Mexican case leads judges to delegate the revision of cases, and the writing of decisions, to low level judicial functionaries (called secretarios), a practice that helps them to cope with the constant flux of cases but prone to corruption opportunities and to lower standards of court decisions. In this case, the number of judges does matter, for court systems to operate at the highest quality levels.13 Another way to evaluate the importance of the number of judges is to examine their capacity to handle cases. Table 8.2 shows the so called clearance rate, or the number of cases filed versus the number of cases resolved by courts within a year. An index of 1 means that the number of cases Table 8.1  Judges per 100,000 Inhabitants, 1993–2001 Country

1993

2001

Argentina14

  9.4

11.1

Bolivia

  7.4

Brazil

Country

1993

2001

Ecuador

  5.0

  5.6

  9.1

Mexico

—

  2.7

  6.1

  3.6

Paraguay

  8.1

10.5

Colombia

  9.7

  7.4

Peru

—

  6.0

Costa Rica

10.9

16.2

Uruguay

18.8

15.5

Chile

  3.4

  5.0

Venezuela

—

  6.3

Sources: Vandershueren and Oviedo 1995: 63; Ungar 2002:153; UNDP 2004: 109; The World Bank Group for Legal and Judicial Reform, 2003. (www4. worldbank.org/legal/database/Justice/Pages/jsSelect.asp?s7=1024).

Corruption, Inefficiency and Violence in Court Systems  171 Table 8.2  Clearance Rate of Civil Cases Backlog Cases Filed (2000)

Cases Disposed (2000)

Clearance Rate (Filed/Disposed)

  86,440

  72,061

1.2

Bolivia

N.A.

N.A.

Brazil

134,125

N.A.

Colombia

643,483

283,326

2.3

Costa Rica

  76,349

  41,831

1.8

Chile

259,077

N.A.

1.1–1.5 (1991–4)

Ecuador

  46,794

  46,704

1.0

Mexico

  36,173

  37,241

0.9

N.A.

N.A.

139,252

138,511

Venezuela

N.A.

N.A.

Uruguay

N.A.

N.A.

Argentina

Paraguay Peru

1.0

For Colombia: the clearance rate for 1999 was 1.2; while 1.1 in 1998 and 1.2 in 1.1; 1997. Sources: The World Bank Group for Legal and Judicial Reform 2003. For Chile, Vargas and Duce 2000: 11.

solved equals the number of cases filed, while an index of 2 indicates that the number of cases entered is double the number of cases cleared, and so on and so forth. The available data shows a reasonable rate for civil cases in Argentina, Chile, Ecuador, Mexico and Peru. Even if penal cases are not included, this data show that these court systems have a good ability to cope with new civil cases. However the picture changes radically when the total backlog is taken into account, as Table 8.3 depicts. Considering the huge total backlog that some Latin American courts have to sort out, it soon becomes evident that the number of judicial personnel is vital for this effort and for keep dealing with new cases at the same time. The available data on total case backlog per staff gives a more accurate picture about under-staffing in the judicial systems in Latin America. Only Costa Rica is able to clear the total backlog with 14 pending cases per judge, while Argentine judges have a toll of 25 cases per member of staff. Cases pile up in Mexico (37 cases per person), Peru (54), Colombia (71), Chile (99) and Ecuador (124), but they are unmanageable in Brazil (4,850). Another important dimension in this insight is the average duration of cases, or their expected duration before a final judicial decision is delivered.

172  The Unfinished Transition to Democracy in Latin America Table 8.3  Total Pending Cases per Judicial Personnel Total Case Backlog

Year

Judicial Personnel

Pending Cases per Staff

Arg

   463,309

2000

18,328

   25.3

Bol

N.A.

—

   599

—

Bra

50,000,000

1993

10,309

4,850.0

Col

  2,900,000

1994

40,585

    71.4

C.R.

     88,581

2001

  6,180

    14.3

Chi

   505,333

2001

  5,071

    99.6

Ec

   500,000

1993

  4,004

  124.8

Mex

  1,000,000

1999

26,626

    37.6

Par

N.A.

—

   421

—

Peru

   500,000

1993

  9,160

    54.6

Ur

N.A.

—

   621

—

Ven

N.A.

—

  1493

—

Sources: The World Bank Group for Legal and Judicial Reform, 2003. Prillaman 2001: 90; Springer 1998: 27; Posada 1998: 120; Dakolias 1993: 7; Rowat Et. Al. 1995: 93.

Data about duration of cases in Latin American courts is quiet dispersed and incomplete. It sometimes appears contradictory because the reports refer to either the median or the average expected figures, or because they consider either only civil cases, just penal cases or both. According to some sources, the time elapsing is considerably long (10 to 14 years) while in other sources it is not that extreme, especially for commercial cases (2 to 4 years). In general terms, the average duration of all cases in 1995–1996 was 2 to 4.5 years in Argentina, Chile, Colombia and Venezuela, but this figure jumps to 7 years in Bolivia, Ecuador and Peru. By 1993, around 10 to 15% of all cases lasted up to 10 years in Argentina, Colombia and Ecuador, while some cases can reach up to 12 years in Colombia and 14 years in Ecuador (Correa and Jimenez 1995: 30; Früling 1998: 245; Springer 1998: 26–8; Vandershueren and Oviedo 1995: 132–4; Ungar 2002:153; Ciurlizza 2000: 218).15 Inefficiencies in the judicial systems in general can lead to exasperation among the citizens, and then to practices of vigilantism and lynching that are themselves against the rule of law. For example, in Rio de Janeiro 90% of homicide investigations failed to produce sufficient evidence for trial (Dodson 2002: 218). Similarly, 95% of all crimes in Mexico have gone unpunished

Corruption, Inefficiency and Violence in Court Systems  173 since 1996 (UNCHR 2002). As a consequence, in 1994 dissatisfaction with the judicial sector was between 60% to 85% in Bolivia, Colombia, Mexico and Peru, and 90% in Venezuela. As Prillaman states: “The void created by weak, inefficient and inaccessible courts has been filled by a combination of mob action, vigilante justice, and law-and-order politicians tapping public frustration and exposing some of the more base impulses of society.” (Prillaman 2000: 172) In Venezuela, 57% of respondents were in favor of lynching criminals as responded in a national poll conducted in 1995, and nearly all of urban Latin America has witnessed a surge in neighborhood vigilantism and lynching during the last decade (Ungar 2002: 217–8). With relation to the penitentiary systems, the main problems in Latin America are the overcrowding rates, harsh conditions of imprisonment and long waiting times for trials. These problems usually lead to fights among prisoners, or riots against prison guards. In some cases, inmates have even united to collectively demand better conditions of confinement.16 Prison riots almost always lead to repressive armed intervention by the authorities, resulting in the killing of inmates on the way, some of them still awaiting trial. Violence within prisons is also a huge problem caused by the overcrowding and harsh conditions of imprisonment; in Venezuela, in 1993, 196 inmates died as consequence of jail violence, which represented almost 1% of the prison population (Venezuela, Ministry of Justice 1995). Figures 8.2 and 8.3 depict data on overcrowding and preventive detention in Latin America. In this respect, the executive branch is responsible for building sufficient facilities and to ensure human treatment of inmates, while the judicial power is responsible for the long delays in sentencing the large number of untried

Argentina Bolivia Brazil Colombia Costa Rica Chile Ecuador Mexico Paraguay Peru Uruguay Venezuela 0

10

20

30

40

Figure 8.2  Overcrowding in prison systems.

50

60

70

80

90

174  The Unfinished Transition to Democracy in Latin America Argentina Bolivia Brazil Colombia Costa Rica Chile Ecuador Mexico Paraguay Peru Uruguay Venezuela 0

10

20

30

40

50

60

70

80

90

100

Figure 8.3  Percentage of untried prisoners.

inmates in already overcrowded prisons. With the exception of Argentina, Costa Rica and Uruguay, all other countries of the sample experience at least 30% overcrowding, reaching 50% or more in Bolivia, Chile, Paraguay and Venezuela, and more than 80% in Brazil. As for untried prisoners, all countries show more that 30% of inmates awaiting sentencing; however, the figure is bigger that 60% in Ecuador, Peru and Uruguay, and is around 90% in Bolivia and Paraguay.17 See Table 8.4. Violence Undermining Judicial Systems Even if the parameters of judicial independence, corruption control and efficiency of judicial systems were met, there is still another dimension that must be addressed for the judicial sector to be genuinely impartial: intimidation and violence towards judges and prosecutors. As part of the intimidation tactics against their imprisonment and judicial process, drug trafficking gangs have targeted not only judges, lawyers and prosecutors, but also ex government officials and journalists. Such has been the case in Colombia where the drug cartels unleashed violent attacks and threats against judges and prosecutors in order to deter conviction and extradition to the United States.18 The Extraditables list and the linked policy of immediate extradition were considered to be partly responsible for the violence against judges since the late 1980s in Colombia. However, guerrilla movements were also responsible for killings of judges, lawyers and prosecutors in Colombia and Peru. This situation led to the adoption of the “faceless judges” system, suggested by USAID in both countries as a means to avoid reprisals from guerrilla groups and drug cartels. However, this system was at odds with

Corruption, Inefficiency and Violence in Court Systems  175 Table 8.4  Data on Prison Systems in Latin America % Inmates in Preventive Detention

Year

Inmates

Capacity

Overcrowding

Number of Penitentiary Facilities

Arg.

   6,112

   6,017

  1%

  26

44%

1997

Bol

   7,165

   4,700

52%

  85

90%

2001

Bra

130,000

  71,823

81%

512

36%

1998

Col

  40,000

  28,000

42%

176

45%

1999

C.R.

  11,852

  11,013

  7%

—

39%

1997

Chi

  34,335

  23,025

50%

110

51%

2001

Ec

   9,280

   7,138

30%

  30

70%

1997

Mex

144,261

108,551

33%

447

50%

1999

Par

   2,266

   1,500

51%

  15

93%

1998

Peru

  27,550

  19,539

41%

  84

62%

1997

Ur

   3,000

   2,400

25%

  24

80%

1999

Ven

  25,000

  15,500

61%

  31

68%

1995

Sources: Centro Internacional para Estudios Penitenciarios, ILANUD 1999; U.S. State Department Country Report on Human Rights Practices for Bolivia 2001; IACHR 1997a, 1997b, 2000, 1999; Ministry of Justice Annual Report, Venezuela 1995.

due process of law requirements, because most of the faceless judges lacked of legal preparation and legal knowledge (IACHR 1999, 2000; Carothers 2001). In Colombia, between 1980 and 1990, 25% of judges was threatened (1600 out of 4500 judges received death threats), while 230 judges and justice officials were murdered by drug barons. The assault on the Palace of Justice in Bogotá, November 1985, constituted a traumatic episode for Colombian judges. After a commando from M-19 guerrilla took the place by force, the violent intervention of the armed forces resulted in 100 casualties: all the members of the guerrilla squad, and 11 of the 23 Supreme Court justices, including the president of the SC, among others. The government of President Virgilio Barco was accused by its critics of ineptitude, but some observers have not ruled out the possibility that the executive might have taken advantage of the situation in order to reshuffle the Supreme Court by means of appointing replacements for dead judges. Nevertheless, this episode made judges in Colombia determined to defend judicial autonomy

176  The Unfinished Transition to Democracy in Latin America (Rico and Salas 1990: 37; Springer 1998: 26–8; Domingo 1999:168; Prillaman 2000:21; Rico 1997: 187). In Mexico, politicians and drug dealers have been linked to the intimidation of judges, lawyers, prosecutors and journalists. In 1995, for example, a justice of Mexico City Supreme Tribunal, Abraham Polo Uzcanga, resigned when he refused to support arrest warrants for 11 union leaders from the city’s bus company Ruta-100, in the middle of a political turmoil. The pressure to shut down Ruta-100 continued while justice Uzcanga received repeated death threats and was kidnapped and tortured by unidentified persons. Finally, two weeks after denouncing corruption in the city’s judicial system, he was found shot dead in his office. The same day, another justice official connected to the bus company case was also shot dead, while the day before the city’s Transport secretary had been dead as a result of two shots on his chest. Before these shootings, another city judge had ordered a series of arrests of the bus company union leaders. By this means, the government declared Mexico City’s public bus service bankrupt, while local officials who helped ruining the bus system were not accused of any wrongdoings. For most commentators, it is clear that violent methods were used by political actors to remove an incorruptible judge, in order to obtain judicial decisions more favorable to the political interests involved (Voice of America, June 21, 1995). As for the intimidation practices of drug traffickers in Mexico, the Tijuana cartel is believed to have been behind the killing of dozens of police commanders, lawyers and judges since 1992. In 1996, the state prosecutor in Tijuana was shot more that 100 times by orders of Ramon Arellano Felix, the chief of the cartel that smuggle tons of cocaine, heroine and marijuana into the United States. Three years before, the ex prosecutor of Sinaloa state was murdered in Mexico City while jogging early in the morning, by orders of the Pacific cartel. In 1997, Sinaloa’s newly appointed prosecutor died when a bomb exploded on board his helicopter, while the governor of Sinaloa, future candidate to the presidency of Mexico, Francisco Labastida Ochoa, received threats to himself and his wife (Thompson 2002). Under these circumstances, low paid judges heading inefficient judicial apparatuses are forced to opt between death or corruption. Even if they decide to stick to the due process of law requirements, their removal by violent means will simply result in the case being handed over to another judge who may decide to yield to politicians and drug dealers. As these examples show, corruption, inefficiency, circumvention of laws and intimidation are usually inter-linked dimensions when determined politicians and criminal organizations decide to exert undue influence over the judicial systems of Latin America. Those are good reasons to seriously consider that any further agenda on judicial reform must take a synergic approach, in order to strengthen simultaneously the crucial aspects of independence, access and efficiency of the judicial sector—as suggested by Prillaman 2000:17–8—, along with a) corruption control mechanisms within

Corruption, Inefficiency and Violence in Court Systems  177 the judicial system, b) a comprehensive program to restructure the penal system so that it fulfils human rights international standards, c) incorporation of legal and structural adjustments to block or reverse circumvention of legal practices, and of course, d) a scheme of personal protection for judges and prosecutors comparable, for example, to the one established in Italy for anti-mafia judges (Falcone 1992). Addressing only one or another of these aspects of judicial reform—or doing it at stages—can create a negative synergy, where unreformed aspects would overwhelm the reformed aspects of the judicial sector. For example, the isolated amelioration of case backlogs clearance can easily end up piling further pressure on already overcrowded prisons, while control of corruption mechanisms can increase judges’ vulnerability when judging members of criminal organizations. In this case, a holistic approach is most desirable in order to effectively enhance the judicial branch in the new democracies. Incomplete or gradual judicial reforms will almost surely fail because the links between the aforementioned aspects—independence, access, efficiency, corruption control, penal system adequacy, enforcement of laws and protection of judges and prosecutors—may lead very quickly to a gridlock in the judicial system produced by its own reforms. In such a case, the judicial sector would be unable to contribute to the overall process of democratic consolidation by means of the strict application of the rule of law. Conclusions Apart from Costa Rica the judicial sectors of all other countries considered in this study (Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela) suffer from serious shortcomings in relation to aspects of corruption, their low structural capacity to prevent or to correct the circumvention of legal practices, inefficient and inaccessible court systems—that contribute to overcrowding and mistreatment of inmates—, and the personal vulnerability of judges and prosecutors to acts of violence and intimidation. These shortcomings complete the vicious circle of low quality justice systems along with those other crucial aspects, already analyzed in former chapters, about the lack of independence of the judiciary, low or nil capacity to check the executive and the military and low capacity to protect human rights. In fact, all these aspects are interconnected, in such a way that further judicial reforms must consider a synergic approach to address all aspects at the same time. Corruption in court systems and circumvention of legal practices bend the application of rules in favor of the highest bidders, seasoned criminals and dodgy politicians. Overall inefficiencies and court corruption tend to benefit those who are familiar with the gaps in the system while acting especially harsh against those who are unfamiliar with legal proceedings— corruption in courts, for example, are a further formidable disadvantage to

178  The Unfinished Transition to Democracy in Latin America those unable to afford a lawyer, and on top of this they find even more difficult to get justice because of their financial inability to pay bribes. Biases and inefficiencies in the judicial systems of Latin America usually result in a situation where a large proportion of prisoners, who may be innocent, are imprisoned for many years without trial. To confront these aspects of judicial disarray, structural causes for internal corruption within the judicial systems must be eliminated: for example, by outlawing “ex parte” communications where such a practice is still legal, while punishing and discouraging the same practice elsewhere; by reducing the tendency to delegate judicial decisions to lower level officials (this means increasing the number of judges), and by guaranteeing the immovability of judges and financial autonomy of the judicial branch (in order to provide personal financial stability and decent pensions for judges, so they are not so tempted to take bribes). Also, only by true judicial independence the room for circumvention of laws can be severely limited for politicians, as well as the privileged and influential, allowing the judiciary to exert judicial review of anti constitutional acts such as the passing of secondary laws that twist the constitutional text. Decree laws to bypass the legislative can also be more restricted if an attentive and empowered judicial branch accomplishes its function as guardian of the constitution; while legal gaps due to an absence of secondary laws—even if requiring the issuing of specific laws by the legislative—, could be filled through the action of independent, efficient and rights protective courts, in cases where civil and political rights are concerned. The question of special tribunals is much more complicated, because they should be absorbed by the judicial branch in order to fulfill the principles of due process of law. However, it is highly unlikely that the executive would cede control of “ad hoc” tribunals such as those relating to Labor and Agrarian issues. These are certainly standards of the rule of law that first require the correction of the present state of disarray in the civil courts for any possibility of achieving them in Latin American judicial systems, apart from Costa Rica. On the other hand, the violence and intimidation used against judges, prosecutors and lawyers tend to create spaces of impunity for drug dealers, guerrilla groups, organized crime and politicians. In this case, a truly independent judicial system must be free from political pressures, from intimidation and from bribery (Buscaglia, Dakolias and Ratliff 1995:12). Furthermore, it is not sufficient to get a handful of honest, incorruptible judges and prosecutors, if interested actors perceive that removing them “by other means” will result in the appointment of more accommodating judicial personnel. The only way to deter this pattern is when interested actors perceive that no matter what they do, every single judge will rule against them, so it would be of no use to sacrifice any judge or prosecutor at all. Such a court system can only be acquired once aspects of the independence of the judiciary, particularly those concerning immovability of judges and financial autonomy, meet international standards. Otherwise, even well intentioned politicians—not

Corruption, Inefficiency and Violence in Court Systems  179 to mention organized criminals and ruthless “political animals”—will find the temptation to remove violently any judge or prosecutor that they find in their way, warning all other judicial functionaries at the same time. Under democratization conditions, the illiberal elitist tendency to ignore or to bend the rules may be a self defeating strategy, due to the high costs that corruption and crime rates impose on the whole of society. Rampant crime rates as a result of inefficient or corrupt judicial systems impose higher transaction costs and even multinational companies have to dedicate significant resources to hiring personal protection for their managers, top employers and associates. Businessmen suffer constant loses when their delivery trucks are robbed, and their facilities are sacked by criminals who go unpunished. Millionaires are kidnapped in exchange for ransom, while violence is not longer the monopoly of the state, but it is repeatedly used by drugs gangs and organized criminals. Also, corruption in courts may benefit to some extent the rich and powerful, as long as the opponent is not richer, better connected or even more powerful. In particular, well-to-do sectors find the existing judicial systems work to their disadvantage when local or national governmental officials show particular interest in specific cases. All the above constitute sufficient reasons to show why the whole of Latin American society—including judicial apparatuses so frequently reticent to procedural reforms—could benefit from the evolution of the judicial system. However, gradualism or partial reforms can become self defeating strategies due to the close link between all aspects of independence, efficiency, access, corruption control, penal systems, enforcement of laws and personal protection for judges and prosecutors. The pursue of a synergic reform to address and enhance all of these edges in a holistic way is fundamental if Latin American is to get a judicial sector capable of coping with the cases of common crime, and with enough political strength to check the executive, to reject military tutelage over civilian courts and to effectively enforce the protection system of human rights. Only then will the new regimes of Latin America surpass the limbo of unconsolidated democracy resulting from the severe incompleteness of the rule of law.

9 Conclusions

We are now in a position to evaluate the strengths and weaknesses of the rule of law during the 1990s in twelve countries of Latin America (Mexico, Costa Rica and the ten countries of South America), as part of the democratic consolidation process in the region. Except for Costa Rica, in all other countries considered here the judicial branch is not as politically evolved as it should be due to feeble republican mechanisms for horizontal accountability and inefficacious judicial remedies for the protection of fundamental rights for all individuals. Despite judicial reforms initiated in most countries of the sample—except for Costa Rica—, as for the year 2000 they had not produce enough independent and assertive judiciaries, neither efficient and impartial court systems, to substantially contribute to the fulfilment of the rule of law. With the only exception of Costa Rica, the absence of strong judiciaries and efficient and impartial court systems explains much of the perseverance of unconsolidated illiberal democracies all over the region. The cases analyzed in this work suggest that electoral democracies cannot consolidate unless they create judicial institutions, mechanisms and remedies for a complete rule of law constructed by democratic means. The reluctance of political elites to embrace the liberal and republican traditions of the liberal democratic model explains part of the overlook on the issue and the scarcity of serious measures to foster the even enforcement of the rule of law. In the case of Latin America, once the electoral democracy has been achieved, critical aspects for exploring the real power that the judicial branch can exert are the following: a) independence of the judiciary, b) judiciary’s capacity to check the executive and other actors of the political scene, c) capacity of the court system to protect civil and political rights, and d) whether or not aggravating practices—such as court corruption, inefficiencies, access to courts, circumvention of laws, defective prison systems and violence against judges and prosecutors—can curtail the judicial power overall capacity to be impartial guardian of the constitutionality. In a graphic way, the relative empowerment of the three branches of government in Latin America v. the liberal democratic model looks as depicted in Figure 9.1.

Conclusions  181 L.A. authoritarian pattern

Post-transition pattern

E

J

E

L

J

L

Liberal democratic model

E

J

L

Figure 9.1  Relative empowerment of the branches of government.

The relative size of the spheres in Figure 9.1 depicts the relative power of each branch, in their “capacity to make another branch to do something that it would not otherwise have done.” (Clegg 1989: 41) The arrows show the direction of horizontal accountability, as the capacity of one branch to make another branch to divulge information about its actions and decisions, to justify them and to suffer punishment in the case of misconduct (Schedler 1999:17). The use of frameworks to discuss the concept of “power” is relevant as after all, the branches of government are also called “powers.” As it has been shown in this book, Latin America’s judicial powers, again except Costa Rica, are weaker than the level of judicial control over the executive expected in the liberal democratic model. On the other hand, the legislatures have shown a greater capacity to match the executive power in

182  The Unfinished Transition to Democracy in Latin America some cases, although the executive has still been able to by-pass Congress by using decree laws. Given that the judiciary has not checked these and many other unconstitutional acts carried out by the executive, despite the judicial reforms of the 1990s, the judicial branch is still the least evolved of the branches of government in the new Latin American democracies. As seen in Chapter 1, the rule of law constructed by democratic means is a key component of the democratic consolidation process. The republican tradition embodies the accountability dimension of democracy, requiring rules, procedures and penalties in order to deal with unlawful acts by government officials. The liberal tradition requires a rule of law that is effectively enforced by the judicial apparatus as a necessary condition in order to obtain a higher quality of democracy in civil and political rights terms. Representation in the making of laws and the even and efficient enforcement of them constitute the only way to improve the quality of democracy, by solving the tensions that exist between liberal, democratic and republican traditions converging in the liberal democratic ideal. There is still a tension between the rule of law, representing the negative concept of liberty (“freedom from”) and democracy as an expression of the positive concept of liberty (“freedom to”), but they complement each other as the two sides of the same liberal democratic “coin.” Chapter 2 showed that serious shortcomings in the judicial systems during the 1990s made the rule of law a weak arena of democratic consolidation in Latin America. This has been called the “un-rule” of law in certain areas, but a more precise picture is the incompleteness of the rule of law in the new democracies. The ineffectiveness of the implementation, and the undue influences that can be observed over court decisions at all levels, constantly curtail individual and minority rights because of the restricted access to justice for the underprivileged, the poor and the indigenous population. The judicial reforms implemented in all our countries except Costa Rica, analyzed in chapter 3, have had some limited results especially relating to mechanical aspects of the judicial work: higher budgets, better salaries for high court judges, better training of judges and a judicial career, installation of modern equipment, introduction of oral procedures and alternative dispute resolution mechanisms. However, impartial judges and due process of law are not assured outside Costa Rica, Chile and Uruguay, while the evidence suggests that the capacity of courts to deal with big case backlogs has not improved as expected. Despite the investment of significant economic resources from international donors, and reformist efforts initiated in the countries of the sample, external judicial independence was not achieved throughout the 1990s, except in Brazil, Costa Rica, Chile and Uruguay. As assessed in chapter 4, in all other cases, the independence of SC justices was compromised as a result of repeated purges and reshuffles as well as budget manipulation and the influence of political networks. The worst case was Peru, due to the

Conclusions  183 complete subordination of the judiciary to the executive after the 1992 judicial reform. As for the capacity of the judiciary to check the executive, some significant examples of horizontal accountability have been observed in Brazil (local taxes), Chile (budget constraints), Costa Rica (supported by the Vesco case from the 1970s), Uruguay (supported by the quick release of the Tupamaros leadership in 1985), and about 30% of presidential decrees and half of the “tutelas” (“habeas corpus” cases) in Colombia. The impeachment of ruling presidents in Brazil, Ecuador and Venezuela constituted rather a dramatic and extreme alternative to the parliamentarian non-confidence vote than a new pattern of judicial accountability over the executive. Apart from the above mentioned cases, the illiberal democratic pattern of the region persists due to the capacity of the executive to dismiss Supreme Court judges. The cases of Argentina, Peru and Mexico provide the clearest examples of this judiciary weakness during the 1990s. Presidents Menem, Fujimori and Zedillo were able to tailor courts sympathetic to their government policies. In chapter 5, it was also argued that the aligning of the Supreme Court with the executive in highly political cases is a pretty good indicator of the weak capacity of the judiciaries to force executives to abide by the law. Chapter 6 revisited the traditional military “fuero”, still very much in place in the new Latin American democracies. Again with the exception of Costa Rica, and to some extent Bolivia and Uruguay also, there is a regional pattern in which by constitutional law or by amnesties, the judicial power simply cannot bring the military into account. This was so for the human rights atrocities of the past (although some improvements have been registered in Argentina, Bolivia and Chile), as well as for common crimes committed by military personnel in the post transition period. This is the mayor anomaly for aspiring consolidated democratic systems. However, it cannot be realistically expected that the militaries of the region will surrender their “fuero” unless the judicial systems can be reformed sufficiently to ensure the truly impartial, efficient and unbiased operation of the civilian courts. As it was seen in chapter 7, for the common citizen—and particularly the poor and underprivileged—, the brand new democracies of Latin America are not so different from the previous authoritarian systems when it comes to protecting fundamental rights. Clearly the judicial mechanisms for the protection of rights continue to be as jammed as before. According to the Inter American Commission of Human Rights—which admits cases only when domestic resources have been exhausted, or when there is sufficient evidence that exhausting those domestic resources would be useless—, the right to life, liberty, freedom from arbitrary detention, the right to a fair trial and guarantees of due process of law are disappointingly protected in these countries, with the exception of Costa Rica. The activities of NGOs, ombudsmen, government human rights offices and international human rights agencies are extremely necessary and very effective when local authorities prove willing to accept and implement the

184  The Unfinished Transition to Democracy in Latin America issued recommendations. Nevertheless, they are not a substitute for a proper court system where human rights protection should be paramount. International monitoring in general, and the Inter American System of Human Rights protection in particular, constitute a promising regime towards achieving international accountability for human rights abuses. But the real change should happen within the new democracies in Latin America, in the form of a truly fortified judicial system. In chapter 8 we saw that apart from Costa Rica, the judicial sectors of all the other countries suffer serious shortcomings. Corruption, a poor structural capacity to prevent or to correct the circumvention of laws, inefficient and inaccessible court systems—which contribute to overcrowding and mistreatment of inmates in prison systems—, and the personal vulnerability of judges and prosecutors from acts of violence and intimidation are all rife. These shortcomings aggravate the incompleteness of the rule of law, the rectification of which will require further judicial reforms that consider a synergic approach to improve all the aspects involved. Otherwise, partial reforms will not produce satisfactory results precisely because of the close links between every part of the rule of law jigsaw puzzle. In order to address the question of violence and intimidation against judges, it is not sufficient to have a handful of honest, incorruptible judges and prosecutors, if interested actors perceive that removing them “by other means” will result in the appointment of more accommodating judges and prosecutors. The only deterrent is for interested actors to perceive that no matter what they do, every single judge will rule against them, thereby making the removal of judges or prosecutors ineffective. Such a court system can only be acquired once the independence of the judiciary aspects, particularly those concerning immovability of judges and financial autonomy, meet international standards. Key requirements of judicial independence—such as immovability of judges, financial autonomy and personal and financial security for judges and justices—are still missing in these countries. The republican component of the horizontal accountability capacity of the judiciary relating to the executive and military was still weak during the 1990s. In fact the capacity of the executive to dismiss Supreme Court justices or to reshuffle the court was pretty high in Argentina, Bolivia (before 1998), Mexico, Paraguay and Peru. The liberal component of rights protection is also low in all countries, excepting Costa Rica and Uruguay. Aggravating practices against the rule of law were present in all countries, again excepting Costa Rica, during the 1990s. Table 9.1 summarizes the situation of the rule of law in Latin America during the 1990s. The first column assesses the relative independence of the judiciary from undue influences from the executive, as the very foundation for the rule of law. The second and third columns evaluate the judiciary’s power vis a vis the executive and the military. The fourth column accounts for the liberal component of the rule of law: human rights protection level—according to IACHR reports and the gravity of reported

Conclusions  185 Table 9.1  Situation of the Rule of Law in Latin America During the 1990s Foundation

Republican

Liberal

Residual

Independence of the Judiciary2

Capacity to Check the Executive3

Capacity to Check the Military4

Capacity to Protect Civil Rights5

Aggravating Practices6

Argentina

   low

  low

  low

   low

  C,v,I,

Bolivia

   mid

  mid

  low

   high

  C,I,P,u

Brazil

   high

  high

  low

   lowest

  C,I,P

Colombia

   mid

  high

  low

   lowest

  C,v,I,P,T

Costa Rica

   high

  high

  n.a.

   high

Chile

   high

  high

  lowest

   low

  I,P

Ecuador

   mid

  low

  low

   low

  C,v,I,p,u

Mexico

   low

  low

  low

   mid

  C,I,p,u,t

Paraguay

   mid

  mid

  low

   mid

  C,P

Peru

   lowest

  lowest

  lowest

   lowest

  V,I,p,u

Uruguay

   high

  high

  mid

   high

  p,u

Venezuela

   mid

  mid

  low

   high

  C,v,P,u

—

Note: “c” stands for court corruption, “v” for circumvention of laws, “i” for inefficiencies in the judicial system (upper caps for the worst cases) , “p” for overcrowding in the penal systems (upper caps for the worst cases), “u” for more than 60% untried prisoners, “t” stands for threats and violence against judges (upper caps for the worst cases).

abuses. The last column measures aggravating practices including levels of corruption, circumvention of laws, inefficiencies, prison systems, percentage of inmates waiting for trial and intimidation of judges. When numerical values are applied to each component of the rule of law, giving one point to “low”, two points to “medium” (mid), three points to “high” and “non applicable”, 0.5 to “lowest”, and –0.2 to each aggravating practice, the resulting values are as shown in Figure 9.2. In this picture only Costa Rica obtained the 12 possible points, while all other countries achieved less than eight points—in fact, less than four points in the cases of Argentina, Ecuador, Mexico and Peru.1 Clearly, the judicial systems of all countries, except for Costa Rica, require further major adjustments in order to eliminate the incompleteness of the rule of law that still permeates their political systems.

186  The Unfinished Transition to Democracy in Latin America RL = f (IJ+HAE+HAM+HRP–AP) IJ Arg 1 Bol 2 Bra 3 Col 2 C.R. 3 Chi. 3 Ec 2 Mex 1 Par 2 Peru 0.5 Ur 3 Ven 2 Region average 2

HAE 1 2 3 3 3 3 1 1 2 0.5 3 2

HAM 1 1 1 1 3 0.5 1 1 1 0.5 2 1

HRP 1 3 0.5 0.5 3 1 1 2 2 0.5 3 3

AP –0.6 –0.8 –0.6 –1 0 –0.4 –1 –1 –0.4 –0.8 –0.4 –0.8

RL 3.4 7.2 6.9 5.5 12.0 7.1 4.0 4.0 6.6 2.2 7.6 7.2

2

1

1.7

–0.65

6.1

RL: Rule of law; IJ: Independence of the Judiciary; HAE: Horizontal accountability towards the Executive; HAM: Horizontal accountability towards the Military; HRP: Human Rights protection; AP: Aggravating practices.

14

IJ+HAE+HAM+HRP–AP

12 10 8 6 4 2 0

Arg

Bol

Bra

Col

CR

Chi

Ec

Mex

Figure 9.2  Situation of the rule of law during the 1990s.

Par

Peru

Ur

Ven

Conclusions  187 In fact, the only country to fulfill the republican and liberal components of the rule of law, without reports of aggravating practices during the 1990s, was Costa Rica. This condition may well be linked to the fact that this country has usually been considered a consolidated democracy since 1949. Under the assumptions of the theoretical framework and the argument of this work, Costa Rica is a consolidated democracy precisely because the arena of the rule of law is robust, due to republican and liberal components fully in place and currently operating in the political system. This is a strong indication that the rule of law is a sine qua non condition for new democracies to consolidate, as the institutional bridge that can finally fill the gap between electoral democracy (low quality democracy) and liberal democracy. When the rule of law is in place all other arenas of democratic consolidation considered by Linz and Stepan (1996): civil society, political society, state bureaucracy and economic society, find a favorable institutional environment in which to flourish and to play their part in the democratic consolidation process. The republican and liberal components of a liberal democracy have their bulwark in the political strength and the efficiency of the judicial apparatus. This requires a genuinely independent and assertive judiciary, as a real power to match the authority of other branches of government and force them— and other actors within the political system i.e. the military—to abide by the law. A consolidated democracy must also offer an orderly and efficient judicial system, able to guarantee due process of law and to protect civil rights from the moment than an individual is detained, and throughout the phases of prosecution, administration of justice and sentencing. Only when such conditions are met in Latin America will the public recover its trust in the judicial institutions, which were so limited throughout the 1990s reflecting the poor quality of the judicial service that they receive in practice. Only then, will Latin Americans treasure the value of democratic procedures and institutions, and only then will it be possible to move beyond the plateau of low quality unconsolidated democracies that are still a hallmark of the incomplete Latin American transition to democracy.

Appendix 1

Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination, Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay, Whereas frequently there still exists a gap between the vision underlying those principles and the actual situation, Whereas the organization and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality, Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles, Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens, Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the

190  Appendix 1 Committee on Crime Prevention and Control to include among its priorities the elaboration of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors, Whereas it is, therefore, appropriate that consideration be first given to the role of judges in relation to the system of justice and to the importance of their selection, training and conduct, The following basic principles, formulated to assist Member States in their task of securing and promoting the independence of the judiciary should be taken into account and respected by Governments within the framework of their national legislation and practice and be brought to the attention of judges, lawyers, members of the executive and the legislature and the public in general. The principles have been formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist. Independence of the judiciary 1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. 2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. 3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. 4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law. 5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. 6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. 7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

Appendix 1  191 Freedom of expression and association 8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary. 9. Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence. Qualifications, selection and training 10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory. Conditions of service and tenure 11. The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. 12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. 13. Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience. 14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial administration. Professional secrecy and immunity 15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to confidential information acquired in the

192  Appendix 1 course of their duties other than in public proceedings, and shall not be compelled to testify on such matters. 16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions. Discipline, suspension and removal 17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. 18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct. 20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

Appendix 2

Presidents of Latin American Countries During the 1990s Argentina Raúl Alfonsín, 1983–1989 Carlos Saúl Menem, 1989–1998 Fernando De la Rúa, 1998–January 2002 Bolivia

Jaime Paz Zamora, 1989–1993 Gonzalo Sánchez de Lozada, 1993–1997 Hugo Bánzer, 1997–2001.

Brazil

José Sarney, 1985–1988 Fernando Collor de Mello, 1988–Dec.1992 Itamar Franco, Dec. 1992–1994 Fernando Henrique Cardoso 1994–2004

Colombia Cesar Gaviria, 1990–1994 Ernesto Samper, 1994–1998 Andrés Pastrana, 1998–2002 Costa Rica Rafael A. Calderón, 1990–1994 José María Figueres, 1994–1998 Miguel Angel Rodríguez, 1998–2002 Chile

Patricio Aylwin, 1990–1995 Eduardo Frei, 1995–2000

Ecuador

Rodrigo Borja, 1988–1992 Sixto Durán, 1992–1996 Abdalá Bucaram, 1996–February 1997 Fabián Alarcón, Feb. 1997–2000

194  Appendix 2 México

Carlos Salinas, 1988–1994 Ernesto Zedillo, 1994–2000

Paraguay

Juan Carlos Wasmosy, 1993 Raúl Cubas 1993–1999 Luis González Macchi, 1999–2002

Peru

Alan García, 1985–1990 Alberto Fujimori, 1990–2000

Uruguay

Julio María Sanguinetti, 1985–1990 Luis Alberto Lacalle, 1990–1995 Julio María Sanguinetti, 1995–2000

Venezuela

Carlos Andrés Pérez, 1989–May 1993 Ramón J. Velásquez, May 1993–January 1994 Rafael Caldera, 1994–1998. Hugo Chávez, 1998–

Notes

Notes to the Introduction 1. Statistical Abstract of Latin America. V.36, 2000. 2. See Table 3.4 in chapter 3. 3. Camp (2002) constructed seven measures from these standards: guaranteed terms, finality of decisions, exclusive authority, ban against exceptionality or military courts, fiscal autonomy, separation of powers and enumerated qualifications. That study examined constitutional provisions, but did not explore whether or not such provisions are respected in practice. In this book, the practical observation of constitutional and legal dispositions will be a crucial element of the analysis.

Notes to Chapter 1 1. A polyarchy requires eight institutional guarantees: 1. Freedom to form and join organizations; 2. Freedom of expression; 3. The right to vote; 4. Eligibility for public office; 5. Right of political leaders to compete for support and for votes; 6. Alternative sources of information; 7. Free and fair elections; 8. Institutions for making government policies depend on votes and other [peaceful] expressions of preference (Dahl 1971:3). 2. The authors use the word “arenas” in the sense of processes that take place in simultaneous stages, similar to shows happening at the same time in two or more arenas of a Circus. 3. The case of Spain during the dictatorship of Franco is striking in this respect, as he “carefully constructed his authoritarian regime and then stuck closely to his rules” (Foweraker and Landman 1997: 115). A good example may be the draconian regime in present Singapore. 4. Zinn 1971. 5. Elite and mass levels are the classical realms of the expression of the political culture, where the virtues of moderation, toleration, civility, efficacy, knowledge, participation and trust are present within a democratic society (Diamond 1999: 161). 6. The republican ideal emerges from the Roman Republic, and from the political thought of Cicero and Machiavelli (The Discourses). O’Donnell 1999: 32. 7. It must be noticed though that both philosophers derived their theory of the separation of powers from the observation of the British government at the time of their writings (Sabine 1973: 513; Madison, Paper # 47, in Hamilton, Madison and Jay 1966).

196  Notes 8. The idea is a very ancient one, rooted in Plato’s Laws and Polybius’ explanation of the stability of the Roman government. The mixed monarchy was a familiar concept in the Middle Ages, and the controversies between the English crown and the courts of common law and between the crown and parliament had stressed the importance of the separation of powers. However, it had not a very definite meaning, until Locke gave it a subsidiary place in his theory of parliamentary priority, and finally with Montesquieu’s proposition of legal checks and balances between the parts of the constitution (Sabine 1973: 514). 9. The argumentation about the separation of powers is displayed in Papers #47 and #48, the system of checks and balances is exposed in Paper #51, while the judicial review theory is developed in Paper #78. 10. From 1811 to 1830, 17 Latin American countries established republican constitutions that were inspired in large part by the U.S. model founded in Philadelphia in 1787 (Foweraker, Landman and Harvey 2003: 79). 11. Roberto Gargarella points out two alternatives to the pure system of judicial review: the New Deal proposal that 2/3 Congress could override a Supreme Court ruling as long as an election intervened between the Court decision and the override; and the Canadian clause that makes certain parts of the Constitution immune to judicial scrutiny (Gargarella 2003b:162). 12. Other cases of authoritarian legality are: the Salazar regime in pre-transition Portugal and the government of Colonels in pre-transition Greece (Higley and Gunther 1992). 13. Foweraker and Landman 1997: 23. Thus, democratic transitions do not necessarily mean the enforcement of the rule of law. In Latin America, for example, there is a sort of paralegality, or limiting zone which is illegal but accepted and unpunished. 14. The Social Contract. Book 1, ch. viii. 15. The rule of law established by President Lee in Taiwan, will survive because it represents the will of the people, which will be freely obeyed even after President Lee leaves office. The new rule of law in Taiwan is not product of President Lee’s own desire, but is a result of the public decision to move on from authoritarianism. On the contrary, the strict rule of law that is observed in Singapore, even if efficient, is a product of Senior Minister Lee’s desire. He imposes a legal order in Singapore because of his political power. But in the future, once he is out of office, it will very likely mean that his rule of law will vanish, because the people have not had an opportunity to approve or to reject this legal order. They just obey some other’s law, not their own.

Notes to Chapter 2 1. The other arenas are: Stateness, civil society, political society, state bureaucracy and economic society (Linz and Stepan 1996: 7). See note 2 of chapter 1. 2. In this phase, for reasons of prestige without risk, hard-liners in the government are convinced by soft-liners of the convenience of political reforms, while the predominance of moderates over radicals in the opposition, and a particular role of opportunists, and permit the continuance of the reforms until the transition outcome (Przeworski 1992). 3. For a list of the most significant political parties in the Americas see Foweraker, Landman and Harvey 2003: 96. 4. Maybe the most striking example of this reluctance has been Vicente Fox, while opposition candidate of the Mexican right-wing PAN, who declared that he was a politician of the left and went as far as proposing a coalition

Notes  197 with the left-wing party, the PRD, despite his well known connections with entrepreneurs, his own past regional manager of Coca Cola and his approval of neoliberal economic policies. 5. Linz argues that presidential systems seem to involve greater risks for stable democratic politics than parliamentarian ones. In the accountability dimension, i.e. a prime minister can be made accountable at any time, while in the presidential system the electorate has to wait until the next election—which has fixed terms—when the effects of the accountable subjects could have evaporated (Linz and Valenzuela 1994:12–4). 6. The recent successful impeachment of ex President Arnoldo Aleman in Nicaragua adds to this tendency. A more detailed analysis of the impeachment processes of Collor, Perez and Bucaram is included in chapter 6. 7. For the hard version of this argument and the main discussion of the topic see Linz and Valenzuela. 1994. A more moderate conclusion, supported by extensive revision of the evidence can be seen in Lijphart 1996, and Foweraker 1998. 8. There have been recent attempts to shift towards a parliamentary system in Brazil, Bolivia and Argentina. However, either by referendum rejection or by political constraints, all cases ended in the defeat of the proposal. In fact, there has been not one single case of shift from a presidential system to a parliamentary in history, so far. 9. In this case, the disobedience of a specific order was interpreted as a temporal suspension of its execution, until the highest authority (the King himself) confirmed the mandate. Anglade, Ch. “Sistemas de Rendicion de Cuentas en America Latina”, lecture during the Seminar “Dialogues with Essex University”, UNAM-ENAH, Mexico City, July 1999. 10. “The law and the police exist primarily as an instrument of oppression on behalf of the elites. The military police, in charge of patrolling, act as an extension of the militia of gunmen of the owners of the latifundia” (Pinheiro 1999: 7). 11. According to O’Donnell: “These are sub national systems of power that, oddly enough for most existent theories of the state and of democracy have a territorial basis and informal but quite effective legal system and that coexist with a regime that, at least at the centre of national politics, is polyarchical” (O’Donnell 1999b: 311–4). 12. See chapter eight for a more detailed analysis on the matter. 13. For example, the most underprivileged in Latin America do not present witnesses declaring in their favour, while middle and upper classes do so while confronting a legal demand. Regarding this point, the position is not dissimilar to that of developed countries, i.e. the United States: “But only persons who seek and can pay for legal assistance can take advantage of [. . .] aspects of adversary procedure; the poor and ignorant are hauled into court [. . .] with their prospects already hopelessly damaged by neglect” (Friedenberry 1971: 40). 14. As the ex president of Brazil, Getulio Vargas, used to say: “To my friends, everything they want; to my enemies, the law”.

Notes to Chapter 3 1. Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Mexico, Paraguay, Peru, Uruguay and Venezuela. Repeated references to the Costa Rican case are made for comparative purposes, although this country has not undergone a judicial reform so far.

198  Notes 2. Costa Rica differs notably from other Latin American nations due to the existence of effective checks on the executive from both the legislative and the judiciary. Costa Rican judiciary prestige does not require the promotion of a judicial reform, which is why—except for a number of timid attempts—the political parties have not yet proposed such a transformation (Cruz Castro 2000: 21; Booth 1999: 442). 3. In the words of Eduardo Posada-Carbo: “[A]s most Latin American countries implemented ambitious programs of economic readjustment, it soon became apparent that the role of the state in the region needed substantial reconsideration.” Such reconsideration deals with the proper role of the state, after the challenge posed to the welfare state model by the revival of the monetarist theory in the 1970s. It is, the need to “rebuilt the state”, or to reduce its economic intervention capacity (Posada-Carbo 1998: 1; Edwards 1995: Ch.3). 4. This was precisely the main objection usually given to the Mexican case before 1997, due to the lack of legal and institutional guarantees that the rule of law would prevail in the electoral outcome, always suspected to be biased to the advantage of the official party, Partido Revolucionario Institucional (PRI). This changed after the political reforms in 1997, which introduced a truly independent Electoral Tribunal and an Electoral Institute genuinely free of undue influence from the Executive. These new provisions were considered key to the possibility of victory for the long-standing opposition party, Partido Acción Nacional (PAN) in the 2000 election. 5. Which is why the literature on this subject usually refers to the un-rule of law in Latin America, though it is more accurate to speak about the incompleteness of the rule of law in the new Latin American democracies (as was argued in chapter 2). 6. The historical development of the judiciary in Latin America is further explored in chapter 4. 7. Source: Latinobarometer, 1995, 1996, 1997, 1998. Public trust in the judiciary for the region has fallen even lower to 20% in 2003, as is mentioned in chapter 6 (footnote 3) of this work. 8. The Libra Foundation has been very active in the introduction of alternative dispute mechanisms in Argentina. IDEA was the first organization to express the preoccupation of “judicial security” in unofficial meetings with Supreme Court judges. Poder Ciudadano sponsored information programs to the public about the importance of the judicial reforms. CEI asked the cooperation of Yale and Palermo Universities to promote further research and law students’ commitment with judicial reforms. While Fundación La Ley cooperated with USAID in the implementation of judicial reforms (Obando 2000: 3). 9. The brand new Brazilian judiciary began to show its capacity to check the executive during the next presidential period, which started in 1990 (Prillaman 2000: 94). This is why the Brazilian case is relevant to the analysis of judiciaries during the 1990s, even if judicial reform there precedes by a couple of years the period considered here. 10. Donor publications such as the USAID’s Guidance for the Promotion of Judicial Independence and Impartiality (2002) are a collection of articles, rather than a source of reference of specific detailed information. Key data such as the length of the trials or the percentage of cases decided against the executive are non-existent, as neither the judicial councils nor the international agencies take a systematic account of such data. In some extreme cases, even the case backlog data is either ambiguous or controversial (UNDP 1998: 22 & 47). 11. The loan was approved in 1992, as the first World Bank’s project on judicial reform, even if it was implemented until 1998 in its fist stage.

Notes  199 12. The judicial reform in Mexico occurred in 1994, while the liberalization period started in 1988, with crucial electoral reforms passed in 1989, 1993, 1995 and 1997; significant local and state electoral gains for the opposition were recognized after 1989, increasing in importance by 1997 with the PRD’s victory in the mayoral elections in Mexico City, the main leftist opposition party. The change in the presidency from PRI to PAN, in 2000 was thus the culmination of a slow transition process (for a review of the transition process in Mexico see Levy and Bruhn 1999). 13. Of course, there are common influences over all countries considered here, such as the judicial reform agenda of international donors and the adoption of the continental European model of the judicial council. But the coincidences are nevertheless remarkable, considering that they were not included as part of an overall agenda—such as the Washington consensus or IMF stand-by agreements—nor resulting from a coherent set of international proposals. For example, international donors tend to promote different and idiosyncratic choices: Sweden wants to export the Ombudsman institution, Germany wants to disseminate its experience of Constitutional Courts, and the U.S. tends to transplant its own civil society experience (Ciurlizza 2000: 226). 14. Judges must be confirmed twice after five-year terms before they enjoy tenure for life (Constitution of the Republic of Paraguay, art. 252). 15. This was also the case in Mexico 1917–28 and Uruguay from 1934 to 1973 (Cossío 2001:74; Vescovi 1985: 372). In principle, it was the case in Ecuador, but the 4 year tenure of SC justices gave the president the real leverage to designate the SC justices through an executive dominated Congress. 16. Table 3.3 deals with the formal constitutional procedures. For the actual mechanisms and political leverages used in the appointment procedure in practice see table 4.2 in chapter 4. 17. In Paraguay, for example, the chief Supreme Court justice personally signed more than 3000 checks monthly (Casaus 1995: 60). Ungar reports that the media delay in high courts between 1983 and 1993 was 48% in Argentina, 39% in Brazil, 28% in Colombia, 29% in Chile, 34% in Mexico and 48% in Venezuela (Ungar 2002: 121). 18. The new Venezuelan Constitution replaced the Judicial Council with the more limited Executive Judicial Office (Dirección Ejecutiva de la Magistratura) within the new High Court (Tribunal Supremo de Justicia) (Ungar 2001: 177). 19. For example, promotions are decided on the annual marks given to lower court judges by higher court justices, which is an indirect and very effective control mechanism (Vargas and Duce 2000: 10). 20. The monthly salaries received by SC justices are around 4,000 USD in Brazil, Costa Rica, Chile, Mexico and Paraguay, while around 8,000 USD in Peru, and as high as 11,000 USD in Bolivia and 12,000 in Argentina (Domingo 1994, 17; Moncayo 1995: 105; Gongora 2001; Fruling 1993: 251; Rowat et al 1995). 21. In Latin American, the Public Ministry is the institution in charge of raising the charges and in many cases acts as a first instance judge, gathering the evidence, taking declarations and—if a case is considered worth it—, summits the evidence to the judge, who decides the cases based on written material. 22. Spain, France and Italy in particular have included oral procedures in their judicial systems (USAID 2002: 72). 23. The paradox with dedicating more resources to the efficiency of courts is that the initial efficiency of courts can attract more people to the court system, creating an even heavier case backlog in the end.

200  Notes 24. The General Attorney is independent in Venezuela, while s/he is part of the executive in all the other cases (Ungar 2002: 19). In general, the creation of a Ministry of Justice has given rise to concerns about a possible curtailment of judicial independence, due to the submission of a judicial organ to the executive. 25. For a brief history of the National Human Rights Commission, see Human Rights Watch World Report 1994: 115–7. 26. Sources: Prillaman 2001: 90 & 119 for Argentina and Brazil; Springer 1998 and Posada 1998: 120 for Colombia; Rodriguez 1995: 202 for Costa Rica; Dakolias 1993:6–7 for Ecuador; Suprema Corte de Justicia 1998 for Mexico; Brandt 1995: 93 for Peru; and UNDP 1998 for Venezuela.

Notes to Chapter 4 1. External independence of the judiciary is that observed in respect to other branches of government. Internal independence refers to the independence of low court judges from superior court judges. Even if both are important to obtain a comprehensive picture of the independence of the judiciary, this chapter will explore only the dimension of external independence, with particular emphasis on independence from the executive branch. 2. According to Alba, in The Latin-Americans, ”Latin American codices are excellent judicial exercises: clear, logical, and minutely detailed. But they have little to do with real life; courts tend to a ‘pettifogging spirit’ to bury themselves in trivia, thus undercutting their own independence”. (cit. pos. Verner 1985: 345–6) 3. In the appreciation of Roberto Gargarella: the conservative model pursued a tyranny of the few, while the populist model was searching for imposition through anarchy. In both, arbitrary government was the outcome, and decisions were taken through sudden impulses and momentary positions (Gargarella 2003: 150). 4. The case of Chile is ambiguous in this classification, as the SC had a great reputation for independence at the time for opposing the Allende government (1970–3). However, during the Pinochet regime most authors considered the SC as dependent on the executive, due to its unwillingness to hear claims of human rights violations (Barahona de Brito 1997: 108; Vargas and Duce 2000). 5. Bolivia has new appointment procedures for the 23 judges of the SC, by two thirds of the National Congress, from a list proposed by the Judicial Council. Nevertheless, this mechanism was approved in 1998 but only operated after 1999. By the year 2000 only 50% of the judges had been appointed under the new dispositions (Rodriguez 2000). 6. In Latin America, Supreme Court judges are called magistrados (magistrates) (Ungar 2002: 6). 7. Manuel Avila Camacho (1940–46) appointed 23, Miguel Alemán (1946–52) appointed 18, Adolfo López Mateos (1958–64) appointed 12, Gustavo Díaz Ordaz (1964–70) appointed 13, Luis Echeverría (1970–76) appointed 15, Miguel De la Madrid (1982–88) appointed 19, while José López Por­ tillo (1976–82), Carlos Salinas (1988–94) and Ernesto Zedillo (1994–2000) appointed 11 justices each (Cossío 2001). 8. About the particularities of the amparo lawsuit see chapter 7. 9. In the ruling Contradicción de Tesis 31/98, issued on the 7th of October 1998, four SC judges voted against three of the judicial propositions, and wrote

Notes  201 dissident opinions where they suggested the sustained judicial thesis may be helping the banks to “knock on the usury doors” (Castro 1998: 48). 10. The friction between the executive and the judiciary was due to a resolution against the decision to raise beer taxes to the brewer Taquina Company (Domingo 1993: 135–46). 11. For further analysis about the violence used against judges in Latin America, see chapter 8. 12. In some states of Mexico, the term of judges at the state level (Tribunal Supremo de Justicia) is six years, coinciding with the term of the governor, who can then tailor the court at his/her pleasure. The result is that traditionally the governor considers the judiciary as subordinate to him (UNCHR 2002: 69). 13. Reports of allowances actually received by the judiciary in different years or periods. Argentina (2000), Bolivia (2000), Brazil (2000), Colombia (1994), Costa Rica (1994), Chile (1990–7), Ecuador (2000), Mexico (1990–2000), Paraguay (1995), Peru (1999), Uruguay (1995), Venezuela (2000). Number of judges per 100,000 inhabitants in Chile is for 2004, while in Venezuela is for 1998. 14. In the Brazilian case the question is whether so much independence of the judiciary, to the extent that it is unaccountable to the other branches, is consistent with a democratic regime. In this respect, Fiss advocates the interdependence of the three branches. So, the task is to optimize the independence of the judiciary, instead of maximizing it (Fiss 1993: 56). Cappelletti similarly argues that judicial independence is not an end in itself, but an instrumental value to safeguard the impartiality of judges. Then, a too independent judiciary can conflict with the democratic accountability of the branches of government, since the question “who watches the watchmen?” would not be solved (Cappelletti 1983: 550–589).

Notes to Chapter 5 1. I will analyze the capacity of the judiciary to check the military in chapter 6. 2. Such is the function that Hamilton confers to SC justices in The Federalist #78. 3. Guillermo O’Donnell’s definition of horizontal accountability is as follows: “The existence of state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful.” (O’Donnell, 1999: 38) 4. There is a dispute whether horizontal accountability exists only in intra state relations (O’Donnell’s position) or if civil society actors should be considered too—Schmitter’s position. A third position points out the existence of international actors as agents of accountability—Pastor’s contribution to the debate (see Schedler 1999: 25). In this chapter, the scope is limited to the first position: the search for horizontal accountability in intra state relations. 5. Notice the similarity with the concept of power formulated by Dahl: “A has power over B to the extent that he can get B to do something B would not otherwise do.” (Dahl 1957: 203; Clegg 1989: 51) 6. In other words: “the ability of the courts to say ‘no’ to the executive and make it ‘stick’.” (Gloppen, Gargarella and Skaar 2003: 2) 7. Argentina, Brazil, Mexico and Venezuela also adopted the federalist arrangement, inspired by the American Constitution. The only exception to the

202  Notes American influence is Uruguay, who modeled her institutional design after the Swiss Constitution, including a triumvirate government in the 1930s. But by the 1950s, the Uruguayan political system had already returned to a presidential dominating system in conformity with the American Constitution (See Weinstein 1988). 8. Exception happened in the Peruvian and Ecuadorian cases during the 1970s, where the military itself got a social commitment and the governments of Juan Velasco de Alvarado in Peru and Guillermo Rodriguez Lara in Ecuador carried out strong statist policies (Lowenthal 1975: 9; McClintock 1983: 20–22; Cueva 1991: 166). Mexico strong presidential system, on the other hand, was the result of the authoritarian-corporatist regime built by the PRI since 1929, in a pendulum of left-wing and right-wing governments under the same political label. The most important piece of the Mexican political system was precisely the overweening, unaccountable executive, with extensive constitutional and extra constitutional powers, for a limited time since no-reelection was also part of the system. Executive prevalence has been considered the “imperial presidency” or “six-term monarchy” since the executive was close to a virtual monarch for six years (Krauze 1997). 9. Even if scholars have pointed out the low correlation between the presidential system and stable democracy, the public has rejected the parliamentary form of government by referendums in Brazil and Argentina, while the political leaders remained reluctant to seriously follow such a path, moreover considering that there has been no historical example of any transition from a presidential to a parliamentary political system (Shugart and Carey 1992: 3; Linz and Valenzuela 1994: 70; Foweraker 1988: 653–4). 10. In cases of minority presidents (i.e. when the executive does not have majority support in Congress) the arrow between executive–legislature is to be drawn in solid lines. Otherwise (i.e. in delegative democratic cases with executive control over Congress) the relation remain in dotted lines, as indication of a legislature which is weak as horizontal accountability agent towards the executive, but still powerful instrument of the executive as horizontal accountability agent towards the judiciary (i.e. when dismissal or reshuffles of the SC are passed by Congress). 11. Menem issued more than 300 Decrees of Necessity and Urgency, or 8 times as from 1853 (Zakaria 1997: 30). 12. Emergency decrees up to 1988, and by reissuing decrees since then, while implementing them in practice until further decision by Congress and a subsequent reissue of the same decree by the government. By these means, Itamar Franco reissued 361 decrees in 1993–4, while Cardoso reissued 648 decrees in 1995–6 (De Souza 1999: 111). 13. Examples illustrating the recent evolution of the executive-assemblies relation in Latin America can be seen in Shugart and Carey, 1992: 204–286. 14. Soon after the impeachment of the Brazilian president, the Congressional Commission of Enquiries (Comissao Parlamentar de Inquerito) started investigations into corruption charges affecting deputies, senators, governors, congressional and presidential staff and the largest construction companies. The so called “budget gate” brought out a clientele network built by the former director of budget for the senate, Jose Carlos Alves, between the construction companies and government contractors, helped by congressmen deciding on of budget allowances. In 1994 the Commission recommended expelling 18 congressmen (at the end, four resigned, while seven were sacked) and further investigation of 14 additional congressmen was initiated at the time (Rosenn and Downes 1999: 54–55).

Notes  203 15. In Venezuela, the Attorney General is independent of the executive, which explains why Ramón Escovar was able to initiate the investigations and to demand the impeachment of President Pérez. 16. After his victory in the polls, Bucaram acted in a provocative style that showed very little of a serious politician. For example, while in office he recorded an album as singer along with a band, Los Iracundos, called El Loco que ama (“The insane who loves”). He also appeared in a T.V. show in order to shave his moustache in front of the camera, as an appeal for private contributions to one of his policies, and declared to be the Loco 00, (the 00 crazy) after descending from a supersonic combat airplane (Saad 1997: 123). 17. When questioned by the press about the number of relatives in his cabinet, Bucaram answered: “What can I tell you? I have around 500 relatives, and all of them are politicians!” (Muñoz 1997: 111) 18. According to article 100 of the Ecuadorian Constitution, a president can be dismissed, among other reasons, for “mental incapacity.” (Saad 1997: 8; Ortiz Alvarez 1997) 19. Under article 139 of the Constitution the Ecuadorian Congress retains the ultimate right to interpret the Constitution (Dakolias 1993:9). 20. The SC of the United States is a good example that in a number of cases— broadly around 25% of the time—, justices have decided against the president who has nominated them. Examples are two of Eisenhower’s choices: Warren and Brennan, and one of Nixon’s choices, Blackmun. For voting behavior among SC justices see Barnum 1993: 235–242. 21. Figure adapted from Shugart and Carey 1992: 122. The score for the US Supreme Court is displayed exactly as Shugart and Carey do. All other scores are constructed following the same method: two points if the president nominates or dismisses, one point if the president has a partial stake, and minus one or minus two points if the Assembly nominates or dismisses. Minus 0.5 is given when formalities require Congress to confirm, but in practice this can be taken for granted. The final column is the algebraic sum of the values. 22. In the 1970s, during the 2nd José Figueres administration, the Costa Rican SC overruled the grant of a passport to the notorious fugitive businessman Roberto Vesco, despite the presidential involvement in Vesco’s behalf. The decision was sustained and respected by the executive (Booth 1999: 444). 23. The 12 members of the Bolivian SC are elected by two thirds of the National Congress, from lists elaborated by an independent Judicial Council. The justices, however, only remain in office for 10 years, while the presidential period is five years. So, every other president has the opportunity to face a brand new SC, and possibly to try to influence the appointment of the justices. Nevertheless, the Bolivian executive still lacks the capacity to remove judges during his term in office. 24. The president of the Venezuelan judicial council has denounced the existence of “judicial tribes” or organized groups that limit the autonomy of the judicial system, and who does not comply with such groups’ informal structure, “is a hero.” The existence of this kind of political networks was also described by the Venezuelan press in 1992 (UNDP 1998: 58–62). 25. The 1958 Punto Fijo agreement included the division of SC justices over the bipartisan AD-COPEI establishment: 4 judges to be appointed by every party, plus another judge to be appointed by means that gave room to the influence of the executive. 26. Three years of house arrest, in such a way that Perez was able to retain both titles as Senator for life and Ex President of Venezuela.

204  Notes 27. Statement made by John M. Walsh. Senior Associate for the Andes and Drug Policy, Washington Office on Latin America, before the House International Relations Committee. Nov. 17, 2005, p. 5 http//wwwa.house.gov/​international​ _​relations​/109/walsh/11705.pdf (accessed in August 8, 2006). 28. In fact, before the judicial reform of 1992, SC judges’ tenure was 4 years, coincidental precisely with the presidential period. 29. After the judicial reform of 1994, a later decree was issued which proposed a massive number of changes to the judiciary, in order to ensure a Colorado controlled Supreme Court (Abente 1996: 123). 30. This tendency to reshuffle the judiciary was not new, however, to Argentine history. In the period 1930–1976 the Argentine SC was reshuffled seven times, each lasting 10.4 months on average (Prillaman 2000:114). 31. The clash was due to a resolution against the decision to raise beer taxes for the Taquina Co. brewery (Domingo 1993: 135–146). 32. A majority of 2/3 of Congress selects the justices from a list produced by the judicial council, whose members are also selected exclusively by the National Assembly (Popkin 2002: 131–132). It is worth noticing that Bolivia shows a three party system, and the threshold of two thirds given this circumstance is highly significant because at least two parties have to agree in order to nominate SC justices. 33. The data from Mexico reflects the influence of the executive over the judiciary up to the year 2000, when the PRI lost the presidency and the extent of the presidents’ influence may have changed somehow. 34. In one of the last acts of the former government, President Salinas appointed two outstanding Camachistas as SC judges, as a way of paying somehow the loyalty and services of the former Mayor of Mexico City and secretary of Foreign Affairs, Manuel Camacho Solís. 35. Including a hunger strike carried out by former president, Carlos Salinas, and the meeting of Salinas and President Zedillo to stop the continuation of the hunger strike. In that meeting, the following trade off was apparently settled on: a) Raúl Salinas would remain detained just as a guarantee that the former president was not to use his political influence against Zedillo, b) Carlos Salinas would not be judged about any of the money withdrawals from the country he was accused of in press reports, and c) the former president would go into self-imposed exile in Dublin, Ireland. 36. For a story about the “Fobaproa” fund (stands for Banks Savings Protection Fund, Fondo bancario de protección al ahorro), see Calleros 1996. 37. Actually, the bailing out reached 30 billion dollars plus interest, to be paid in annual installments by the taxpayer for three decades, at least (Farber 1996). 38. For example, the Commerce Code, a federal organic law, clearly prohibits compound interests on commercial transactions. However, the SC gave priority to the permission given to compound interests written in the Banking and Stock Market Law, a secondary law with less hierarchy in the Mexican law system than the Commerce Code (Castro 1998). 39. The election in Ciudad Juarez was originally won by the PAN. In the repeated election 10,000 votes cast for the PRI were declared void—more than the difference in votes PRI-PAN—. After furious protests from the PRI the local electoral tribunal ordered another election, but this decision was overruled by the Federal Electoral Tribunal, upholding by these means the dubious victory of the PAN (Berruecos 2003: 819). Another case of partiality in favor of the ruling party is the fine of 1,000 million pesos (100 million dollars) imposed to the PRI in 2003 for 120 million pesos (12 million dollars) directed from PEMEX (the oil state owned company) to the PRI presidential candidate Francisco Labastida. But in a similar case against the PAN, where 125 million

Notes  205 pesos (12.5 million dollars) were given from foreign accounts by the Friends of Fox (the Mexican electoral code specifically forbids this practice), the electoral authorities refused to hear the complaints in July 2001 (Berruecos 2003: 821). 40. See, for example Rial 1996: 133–146; and Weinstein 1988: 100–112. This last author, for example, points out the quick release of top leadership of Tupamaros in 1985 as an act of national pacification in Uruguay, supported immediately by the brand new independent judiciary. 41. For an account of the Vesco case see Booth 1999: 444; and note 22 in this chapter. 42. In September 1998, the SC unanimously overruled the new “governability clause” issued in August which gave automatic majority in the composition of the local congress to the party who won the election, even if percentage of the votes obtained was inferior to 50%. The rule was so aberrant that not even the PRI national government was up to defending it, and so let the SC justices to rule in freedom, which they did. However, even if there are “governability clauses” in nearly half of Mexican state legislatures, the SC ruling did not affect the electoral codes in those states (Finkel 2003: 793 n.3). 43. The Brazilian case is more likely to mean a permanently greater capacity for the judiciary to check the executive power, given that an independent judiciary is better equipped to oversee the executive actions. The Venezuelan case is not that promising. Since the reshuffle of the SC in 1999 and recent events during the government of Hugo Chavez backward steps in the judiciary’s capacity to check the executive have been reported (IACHR 2003; HRW 2004). 44. Trust levels in the Mexican SC are just 27% in average from 1994–1998. Central American judiciaries are closer to the weak horizontal accountability capacity, except perhaps for the case of Nicaragua, where a trial for corruption charges was recently followed against Ex President Arnoldo Alemán. The ex president was found guilty of the charges and was put under house arrest.

Notes to Chapter 6 1. Other countries without a regular army during the 1990s were Haiti and Panama. About seven thousand military personnel were dismantled in Haiti by President Aristide, after resuming office in October 1994, while the National Guard of Panama was destroyed by the Americans as a result of the intervention of 1989 (Rial 1996: 50). 2. As economic development undermined the original establishment, the system changed by addition rather than through reformation. New classes (commercial farmers, entrepreneurs, middle classes and some groups of organized workers) were wholly or partially accommodated, but the system retained many of its primary characteristics (Zagorski 1992: 5). 3. Such is reported by the Latinobarometer poll, year after year. Social trust in the armed forces for 17 Latin American countries was around 40% in 2001, but just 30% for the executive, 24% for the National Congress and 27% for the judiciary. 4. Official truth commissions were created in Bolivia 1982–4, Argentina 1983–4, Chile 1990–1, Uruguay 1985 and Ecuador 1996. The official status of these commissions was supposed to give them better access to official sources of information; however this was only achieved in the cases of Argentina and Chile. Nevertheless, the unofficial investigation launched in Uruguay by SERPAJ (Servicio Paz y Justicia) produced remarkable results, better than the Uruguayan official counterpart (Hayner 2002: 21–3); while the unofficial

206  Notes Brazilian report “Nunca Mais” obtained ‘semiofficial’ status due to its success as best seller for several weeks in Brazil (Barahona de Brito 2001: 125). 5. Like the one proposed by Huntington “[. . .] the better course than valor for the new democratic governments on the issue of prosecute-and-punish versus forgive-and-forget remains: ‘Do not prosecute, do not to punish, do not forgive, and, above all, do not forget’ ” (Huntington 1996: 9–10). 6. As Anglade states, the upholding of amnesties is “perhaps the clearest evidence that the military are effectively unaccountable in Latin America” (Anglade 1994:240). 7. “Reformers in Chile and in Alfonsin’s Argentina learned that a recalcitrant military limits the success of strategies to enhance judicial independence—a lesson Alfonsín learned most clearly when the military made his life so difficult that he agreed to left office six months before his term expired” (Prillaman 2001: 166). 8. The “Nunca Mais” report was written using data held by the Supreme Military Court archives in Brasilia on the trial of 707 ‘subversives’. More than one million pages were secretly photocopied by a group of lawyers coordinated by the bishop of Sao Paulo, Cardinal Paulo Evaristo Arns and the Presbyterian pastor, James Wright, with funds provided by the World Council of Churches (Weschler 1998; Barahona de Brito 2001: 125). 9. “For the most part, those whose names appeared on the list retained their positions and, thanks to the amnesty had little more to endure than the public’s contempt” (Weschler 1998: 76). 10. The mass grave of Pisagua was discovered in June 1990, showing the importance of the truth telling commission. Other mass graves discovered were: Colina, Chihuio, Copiapo and Calama in 1990; Patio 29 of Santiago Cementery on September 1991; Tocopilla, Talca, Concepción and Temuco, afterwards (Barahona de Brito 1997:159). 11. The Supreme Court found General Contreras and Colonel Espinoza guilty of the murder of Oswaldo Letelier in Washington, in the 1970s, and were sentenced to 6 and 7 years of prison respectively. In the Degollados case, 5 carabineros were sentenced. As for the Tucapel Jimenez case, the investigations lead to the arrest of General Alvaro Corbalan (Barahona de Brito 1997: 179, 185). 12. For example, Spanish judge Baltazar Garzón relied heavily on the Chilean truth commission report to build up his case asking the extradition of Pinochet to Spain (Hayner 2002: 102). 13. In the “Condor Operation”, military intelligence services from Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay agreed to cooperatively eliminate the enemies of these regimes across borders. The killings of Uruguayans Michelini and Gutierrez Ruiz, and Chilean General Pratts in Argentina, 1976, are but the most notable examples of a rather extensive deadly regional cooperation (Barahona de Brito 1997: 48). 14. International law clearly establishes the duty of the state to provide redress for abuses by state forces. The Inter American Commission of Human Rights assumes this position and have included compensation to victims in recommendations and friendly settlements on individual suits, especially from Argentina and Ecuador, but also from other countries part of the Inter American system of human rights (Hayner 2002: 179). 15. However, as Teitel (2000: 126) points out: “In assuming the obligation to pay reparations, the successor regime took responsibility for the past regime’s wrongdoing.” 16. In Peru a Truth and Reconciliation Commission was created in 2001 to investigate acts carried out between 1980 and 2000, while in Uruguay a Peace

Notes  207 Commission was established in August 2000 by president Jorge Batlle to inquire into forced disappearances during the “de facto” regime (Hayner 2002: 263). 17. The Ministry of Defense, for example—led by a civilian but with three military service ministries—has dominated issues of law and order since the transition (Acuña and Smulovitz 1996: 25). 18. On and off duty military police officers participating in death squads were responsible for hundreds of killings and disappearances of “disposable people”—street children, peasants and indigenous people—, and are reported to act with almost total impunity in nine of Brazil’s 26 states. Only in 1993, scandals involving military police personnel included eight street children killed in Candelaria, Rio de Janeiro, 21 people of Vigario Geral, Rio de Janeiro as well, and 16 Yanomami Indians along the border with Venezuela (Panizza and Barahona de Brito 1998: 27–31). 19. Guerrilla members, drug traffickers and politically important individuals involved in special cases have been interrogated there before being turned over to the General Prosecutors office.

Notes to Chapter 7 1. The problem of military intervention in the judicial system was the subject of the previous chapter. However, the most salient threats of military tutelage of the judicial process on human rights protection will be included in this chapter as well. 2. Among others, the 1967 Protocol of Buenos Aires (which incorporated the Inter American Commission of Human Rights and added provisions relating to economic, social, scientific and cultural development of member states), the 1985 Protocol of Cartagena de Indias, the 1992 Protocol of Washington, and the 1993 Protocol of Managua (which instated the Inter American Council for Integral Development). All these protocols are amendments to the OAS Charter that strengthened the I-A System of Human Rights. See Gomez 1998: 174. 3. In the Uruguayan case, the 1930 Constitution was suppressed during the military regime of 1973–1985, but it was reinstated afterwards. 4. Source: Ortiz-Alvarez and Lejarza 1997. 5. The phrase itself means “you have the body”. The writ of “habeas corpus” is issued by a judge, in response to a former application made by someone or on behalf of someone who is in police custody or is confined to prison. Once issued, the writ requires that the prison officials present the individual in court for inspection of his/her integrity (Barnum 1993: 329). 6. By means of “habeas corpus” which is recognized in most constitutions of the sample, while the “amparo” lawsuit is a similar judicial mechanism recognized also in most constitutions, including those of Mexico (art.107) and Venezuela (art. 49). 7. Mexico accepted the jurisdiction of the Inter American Court of Human Rights only in the year 2001. 8. In the Peruvian countryside, the indigenous population has to walk an average of 33 miles through tortuous paths to reach a courthouse (Buscaglia and Domingo 1997: 15). 9. In Mexico City, local prisons are overcrowded with prisoners of an indigenous background. They traveled to the capital searching for jobs, and found themselves in prison instead, commonly for reasons unknown to them. In the 3rd. Pavilion of the “Reclusorio Oriente”, one of the largest federal jail, about

208  Notes 60% of inmates do not speak Spanish, and are asked to fulfill duties by just placing in front of them the utensils to do the job, and pointing out the place where it has to be done (See the dramatic narrative about indigenous prisoners in Mexico City in Cronica, March 22, 2004). 10. The constitutional “amparo” was introduced in 1840 in the state of Yucatan, Mexico, and in the 1870s at the Mexican federal level. It was the creation of lawyers Crecencio Rejón and Mariano Otero. The “amparo” (meaning “protection”) is a legal mechanism designed to protect fundamental rights by means of halting the penal action while it is determined if the “amparo” lawsuit proceeds or not. The “amparo” was adopted in the 1917 Mexican Constitution (articles 103 and 107), and is still the main fundamental rights protection proceeding in Mexico. 11. The “habeas corpus” mechanism operates in all countries of the sample, except for Mexico and Venezuela (before 1998). The “habeas data” for access to the information on record with public agencies concerning a particular person, and the request to correct errors, is in force in Argentina (Art.43) and Costa Rica (Art. 30 and 48), and has been recently introduced in Brazil (Arts.5,105,108,109), Ecuador (Art.30), Paraguay (Art.135) and Peru (Art.200 ord.3). 12. In Mexico, for example, “amparo” lawyers are highly specialized, whether the lawsuit deals with property rights, civil rights or labor rights. This is an indication that the “amparo” proceeding is not as simple as is suggested by the constitutional text, and it usually generates expensive costs. 13. In Mexico 1999, during the proceedings against students that have kidnapped the National University facilities in Mexico City for several months, half of them—around 50 students—were freed by one judge, but when his shift finished and another judge took over, the second judge decided against all other 50 students in the same circumstances, who remained in prison for several more weeks. The same can happen in subsequent “amparo” lawsuits filed across the judicial system. 14. A revision process to a higher court can also be invoked after the first “amparo” has been denied by a lower court, producing by these means a chain of “amparo” petitions that constitutes a whole “amparo” lawsuits system. This system is constantly and commonly abused by lawyers in the know, who acting in the aggregate slow down the entire court work, leaving criminals out of the reach of justice, for months or even years in some cases! 15. A contemporary example of this is the case of the High Tribunal in Yucatan, Mexico. It was reshuffled by a new governor, Patricio Patron Laviada, through an executive dominated local congress when the bench refused to annul the sentence of a friend of the governor convicted for the murder of his wife. By initiative of governor Patron Laviada, Congress started impeachment process against 5 out of the 6 local court judges, removing them by these means, and sending a clear message about the compliance expected from the substitutes (See Cronica, March 22, 2004). 16. This is one of the three regional systems of human rights protection. The other two are the European system and the African system. In all systems, countries are presumed innocent until the case is proved. The European system is considered to be the strongest of them all, followed by the Inter American system, while the weakest is the African system (Forsythe 2000:129). 17. Even if some countries have not yet ratified the Convention: the United States, Canada and Cuba included. 18. Argentina accepted the jurisdictional competence of the I-A Court in 1984, Bolivia in 1993, Colombia in 1985, Chile in 1990, Costa Rica since 1980,

Notes  209 Ecuador since 1984, Mexico in 2001, Paraguay in 1993, Peru in 1981, Uruguay in 1985 and Venezuela since 1981 (Fix Zamudio 1997:69). 19. Also known as the Pact of San José, Costa Rica. Ratified by Argentina in 1984, Bolivia 1979, Brazil 1992, Colombia 1973, Costa Rica 1970, Chile 1990, Ecuador 1977, Mexico 1982, Paraguay 1989, Peru 1978, Uruguay 1985 and Venezuela 1977 (Harris and Livingstone 1998: 562–3). 20. However, only a few ratifications have been deposited (including Brazil, Ecuador, Mexico, Peru, Uruguay) and is still short of the 11 ratifications necessary to enter into force (Ibid: 307,572). 21. Ratified by Brazil 1996, Uruguay 1994 and Venezuela 1993 (Ibid: 572). 22. Ratified by Argentina 1989, Brazil 1989, Chile 1988, Mexico 1987, Paraguay 1990, Peru 1991, Uruguay 1992 and Venezuela 1991 (Ibid: 573). 23. Only ratified by Argentina 1996, Costa Rica 1996 and Venezuela 1996 (Ibid: 574). 24. Ratified by Argentina 1995, Bolivia 1994, Brazil 1995, Costa Rica 1995, Ecuador 1995, Paraguay 1995, Peru 1996, Uruguay 1996 and Venezuela 1995 (Ibid: 574–5). 25. The Commission is integrated by seven members elected by the OAS General Assembly. 26. The Court is formed by seven members as well. Decisions of the Court are binding, final and not subject to appeal for states which have recognized its contentious jurisdiction as obligatory. Only 22 contentious cases and 28 judgments had been issued by 1998 (Cancado 1998: 136). 27. The IACHR was authorized to examine individual petitions by the Second Special Inter American Conference, Rio de Janeiro, 1965 (Cerna 1998: 76). 28. Have been particularly effective in cases of arbitrary detention and when there are fears that the victim will be ’disappeared’ by the authorities (Cerna 1998: 111). 29. I thank Clara Sandoval, from Essex University Human Rights Center, for the clarification about the “indication of State responsibility” notion from the IACHR criteria about exhaustion of domestic resources—or from the excused circumstances for exhaustion of domestic resources—for accepting petitions of cases on human rights abuses. 30. Friendly settlements are difficult to reach due to the nature of human rights violations, but are still mandatory as means of reparatory justice, according to the I-A Convention. Commonly, the state accepts limited responsibility and agrees either to pay compensation to the victims or relatives or to carry out symbolic gestures of remembrance, such as naming schools and streets after the victims or to dedicate squares and monuments to them (Harris and Livingstone 1998: 103). 31. The reports on judicial independence and the judicial power’s capacity to counteract the executive and the military were considered in the three previous chapters. 32. A suspect was brought to justice in 1995, accused of carrying out 90 murders, but was convicted for only one murder in 1999. A gang called “Los Rebeldes” was arrested in 1996, but by January 2002 had not been tried. Another gang, “Los Rateros”, was retained in custody in 1999. They confessed to 12 killings, but later alleged the confession was made under torture. In the meantime, the assassinations have continued, totaling 189 by the end of 2001. 33. 93.2% of the detainees in 1998 and 90% in 2000 (meaning 2111 detainees without sentence, and only 155 condemned) IACHR 2001. 34. In January 1994, the massacre at Sabaneta Prison in Maracaibo left 100 dead inmates. In October 1996, 25 inmates burned to death at the Paraiso

210  Notes ­ e-educational and Artisan Work Center. While in August 1997, 29 inmates R died inside the El Dorado judicial jail (IACHR 2003:198). 35. Rico and Salas 1993: 34. 36. Ibid. 37. Precisely the dimensions considered by Prillaman 2000: independence, access and efficiency of courts.

Notes to Chapter 8 1. As O’Donnell has stated, “a situation in which one can vote freely and have one’s vote counted fairly, but cannot expect proper treatment from the police or the courts (. . .) severely curtails citizenship” (O’Donnell 1993 cited by Ungar 2000: 234). 2. Syndicated corruption happens when a whole group of officers are involved in the collection and distribution of money or undue influence over governmental apparatus. 3. In fact, not a single country scores 10 in the International Transparency “Perceptions of Corruption Index” (PCI), but around 9.5 to 9.7 for those perceived as less corrupt. 4. In this case, the CIP index for Chile was just above that registered for Germany in both years. 5. The case of Paraguay, for example, is not only the worst of the region, but also one of the worst worldwide, usually listed among the worst 10% of the ICP index published by International Transparency since 1993. In 2003, Paraguay was placed in the 130th place of 133 countries, only outperforming Haiti, Nigeria and Bangladesh for that year. 6. For the previous year, the number of corruption acts detected was nearly double: 214 million actions, for about 2 billion dollars from October 2001 to October 2002 (TI 2003). 7. www.transparency.org/pressreleases_archive/2004/2004.04.14.investigation​_​ award.2004.htlm 8. The existence of such networks in Venezuela was extensively covered by the local press during the 1992 crisis (UNDP, 1998: 62). In Paraguay and Mexico, lawyers are expected to be masters in “mordidas” and “coimas”, speed money and traffic of influences while dealing with cases; otherwise they would be considered rookies, fools or naives. (Rico and Salas, 1993: 49) 9. In Mexico, the Cartel of Tijuana is believed to pay $75 million dollars per year bribing police, military and government officials (Thompson 2002). 10. Colonial officials could selectively ignore royal edicts sent from the Metropolis, Madrid, which would cause too much damage to local interests, by labeling them with the legend: “respétese pero no se cumpla” (rule to be respected but not acknowledged). The similar process appears to be happening in secondary laws, trying to “correct” in practice the “too idealistic” constitutional dispositions and translate them into more fit-to-reality rules (Schor 2002:5 and Adelman 1999). 11. Part of the arrangements was that the Church would not express criticism of the political regime, and to restrict from participating or giving support to political revolts or guerrillas (Blancarte, R. ‘Historia de la Iglesia Católica en México’. FCE, 1992). After the constitutional reform of 1991 some articles were modified to match realities, and allow the signing of a Concordat with the Vatican. But the Masons placed in politically influential positions managed to force the Legislative to issue an Organic Law that was much

Notes  211 more inconvenient to the Catholic Church in practice than the Constitutional reform (LaMadrid Souza, F., ‘La larga marcha a la modernidad en materia religiosa’. FCE, 1994). 12. The article deals with “Dos Rios”, a Mixteca Indian Community in the Southern state of Oaxaca, where 18 police officers equipped with one pick-up truck have to cover 156 small villages with a population of 30,000 people. In the rainy season, police officers are simply cut off by impassable roads, situation which means a golden prospect of impunity for local criminals. 13. The inquisitive penal process system implies that the judge assumes the functions of investigation, instruction and decision. This leads to a high level of delegation of jurisdictional functions over subordinate personnel, which in turn means the introduction of corrupt practices among low level judicial functionaries (Vandershueren and Oviedo 1995: 132–4). 14. The decline of the number of judges in Argentina reflects the destitution of judges, the restructuring of the judicial sector and the intervention of the Federal government in different provinces, including the local justice powers, during the Menem presidency (For the intervention in Catamarca, Santiago and Tucuman see San Martino 1996: 1253–62). 15. Duration of penal processes in Argentina: 30.6% lasted more than 1 year, 35.5% between 1 to 2 years, 19% between 2 to 3 years, and 14.9% more than 3 years (Correa and Jimenez 1995: 30). 1993 median terms for settlements in civil process: Argentina, 2.5; Ecuador. 1.9 years; Venezuela, 2.4 years. (Fruling 1998: 245). In Ecuador, commercial cases may take up to 10 years to be decided (Dakolias 1993: 3). Colombia 1994, 3 years in penal proceedings (Springer 1998: 26–28). By 1995 Venezuela and Argentina, showed 4.5 years in average; Paraguay, 5 years in civil cases. In Colombia, some cases take up to 12 years (Ungar 2002:153). In 1993, the expected duration of civil procedures was 10 years in Argentina, 14 years in Ecuador. By 2000, there was a reduction from 12 to 7 years in the average duration of civil cases in the Andean region (Bolivia and Ecuador in particular) after World Bank projects of 1996–7 (Ciurlizza 2000: 218). 16. In Bolivia, in February 2004 around 70% of inmates joined in a protest for better conditions of imprisonment, with actions that included hunger strikes, while two prisoners were even voluntarily nailed to crosses by their fellow prisoners as part of the protest (Miami Herald, February 11, 2004). 17. This pattern of excessive preventative detention violates the principle of presumption of innocence within the due process of law requirements. For human rights violations as consequence of overpopulation of prisons, preventive detention, mixture of inmates and harsh conditions of imprisonment see Rodley 1990. 18. The government of Virgilio Barco in the 1980s signed an extradition treaty with the United States that allowed the immediate extradition of Colombian drug lords, known since then as the Extraditables (“the ones subject to extradition”).

Notes to Chapter 9 1. This evaluation differs greatly in some cases from the World Bank’s “Rule of Law 1998–2000” index, possibly because of the bias towards property rights and commercial issues in the “rule of law” concept of this organization—and the violence associated with drug gangs and guerrillas in the case of Colombia. The World Bank employs a more complicated formula, while the results vary

212  Notes from –2.5 to 2.5; in descending order they are: Chile (1.09), Costa Rica (0.55), Argentina (0.32), Uruguay (0.27), Brazil (–0.22), Bolivia (–0.36), Mexico (–0.47), Peru (–0.52), Venezuela (–0.66), Paraguay (–0.69), Ecuador (–0.72) and Colombia (–0.78). www.worldbank.org/​wbi​/​governance​/​gov​data​2001​.​ htm​2000/01 2. As considered in chapter 4. 3. As considered in chapter 5. 4. As considered in chapter 6. 5. By the number of petitions declared acceptable by the IACHR, plus number of friendly settlements and taking account of the gravity of human rights abuses, as considered in chapter 7. 6. As considered in chapter 8.

Bibliography

Abente, D. 1996. “Paraguay: Transition from Caudillo Rule” in Domínguez and Lowenthal 1996: 58–71. Abraminovich, V. 2000, Informe sobre independencia judicial en Argentina. Due Process of Law Foundation. www.dplf/Informe_-_Argentina.htm Acosta, A. 1997, “El Bucamarismo en el poder: reflexiones al finalizar el espectáculo” in Varios 1997: 47–90. Acuña, C. and C. Smulovitz. 1996. “Adjusting the Armed Forces to Democracy: Successes, Failures and Ambiguities in the Southern Cone” in Jelin and Hershberg 1996: 14–35. Agüero, F. 1992. “The Military and the Limits to Democratization in Latin America”, in Mainwaring; O’Donnell and Valenzuela 1992:154–79. ——— 1997, “Towards Civilian Supremacy in South America” in Diamond, Plattner, Yun-han and Hung-mao 1997: 177–200. ——— and Stark, J. (Eds.) 1998, Fault Lines of Democracy in Post-Transition Latin America. Miami: North-South Center Press-University of Miami. Adelman 1999. Colonial Legacies. New York: Routledge Amnesty International, 1993. Peru: Human Rights since the Suspension of Constitutional Government. ——— 1994a. Beyond Despair. An Agenda for Human Rights in Brazil. ——— 1994b. Political Violence in Colombia. Anglade, Ch. 1994. “Democracy and the Rule of Law in Latin America” in Budge and McKay 1994: 233–52. Ayala, E. (Ed.) 1991. Nueva Historia del Ecuador. V.10: Epoca Republicana IV. Quito, Ecuador: Grijalbo. ——— (Ed.) 1991b. Nueva Historia del Ecuador. V.11: Epoca Republicana V: El Ecuador en el último periodo. Quito, Ecuador: Grijalbo. ——— (Ed.) 1993. Nueva Historia del Ecuador. V.12: Ensayos Generales I. Quito, Ecuador: Grijalbo. Azabache, C. 2002. “Sobre la corrupción en el Poder Judicial” en Reforma Legal y Judicial y Control de la Corrupción en América Latina y el Caribe. www.world​ bank.org/wbi/governance/madrid 2002/pdf/azabache.pdf Baker, 1971. Judicial Review in Mexico. Austin, Texas: University of Texas. Barahona De Brito, A. 1997. Human Rights and Democratization in Latin America: Uruguay and Chile. Oxford/New York: Oxford University Press. ———, C. González-Enríquez and P. Aguilar (Eds.) 2001. The Politics of Memory: Transitional Justice in Democratizing Societies. Oxford/New York: Oxford University Press. Barnum, D. 1993. The Supreme Court and American Democracy. New York: St. Martin’s Press.

214  Bibliography Beetham, D. 1999. Democracy and Human Rights. Cambridge: Polity-Blackwell. Benomar, J. 1995. “Justice after Transitions” in Kritz 1995: 32–41. Berlin, I. 1969. Four Essays on Liberty. London: Oxford University Press. Biebesheimer, C. 2001. “Justice Reform in Latin America and the Caribbean: The IDB Perspective” in Domingo and Sieder, 2001: 99–141. Binder, A. 2002 “Corrupción y sistemas judiciales.” www.worldbank.org/wbi/​ governance​/madrid2002/pdf/binder.pdf Blancarte, R. 1992 Historia de la Iglesia Católica en México. México, D.F: FCE. Blondel, J. 1995. Comparative Government. 2nd. Ed. London/New York: Prentice Hall. Bogarin, J. Informe sobre independencia judicial en Paraguay. 2000, Due Process of Law Foundation. www.dplf.org/informe_-_Paraguay.htm Booth, J. 1999. “Costa Rica: The Roots of Democratic Stability” in Diamond, Hartlyn, Linz and Lipset 1999: 431–462. Boyle, K. and A.O. Sherif. 1996. Human Rights and Democracy: The Role of the Supreme Constitutional Court of Egypt. London/The Hague/Boston: Kluwer Law International-CIMEL. Brandt, H.J. 1995. “The Justice of the Peace as an Alternative: Experiences with Conciliation in Peru” in Rowat Et. Al. 1995: 92–97. Brugger, B. 1999. Republican Theory in Political Thought: Virtuous or Virtual? London: Macmillan. Brysk, A. 1994. The Politics of Human Rights in Argentina: Protest, Change and Democratization. Stanford, Calif.: Stanford University Press. Budge I. and J. McKay (Eds.) 1994. Developing Democracy: Comparative Research in Honour of J.F.P. Blondel. London: SAGE. Burt, R. 1993. “Judicial Independence and Constitutional Democracy: Lessons from the U.S. Experience” in Stotzky 1993: 290–296. Buscaglia, E; Dakolias, M. and Ratliff W. 1995, Judicial Reform in Latin America: A Framework for National Development. Stanford University Press—Hoover Institution. Buscaglia, E. and Domingo, P. 1997, Impediments to Judicial Reform in Latin America. Mexico City: CIDE. Cadi, M. 1996, El Juicio a Carlos Andrés Pérez.¿Inocente o culpable? Caracas, Venezuela: Arte Fotolitográfico. Calleros, J. C. 1997. “Las implicaciones del Fobaproa en la economía política” in Farber, G. (Ed.) 1997. Camp Keith, L. 2002. “Judicial Independence and Human Rights Protection Around the World” in Judicature, v.85 no.4 (January-February): 195–200. Cancado Trinidade, A. 1998. “The Inter American Human Rights System at the Dawn of the New Century: Recommendations for Improvements of its Mechanisms of Protection” in Harris and Livingston 1998: 399–419. Cappelletti, M. 1989, The Judicial Process in Comparative Perspective. Oxford: Clarendon Press. ——— 1983. “Who Watches the Watchmen? A Comparative Study on Judicial Resposibility” in Shetreet and Deschenes 1985: 550–589. Carothers, T. 2001 “The Many Agendas of Rule of Law Reform in Latin America”, in Domingo and Sieder 2001: 4–16. Carrion, A. 1997. “Y llegó el comandante y mandó a parar” in Varios 1997: 117–144. Casaus, J. 1995. “Court Organization and Court Reform: Experiences in Latin America” in Rowat et al. 1995: 59–62. Castro y Castro, J. 1998. La Suprema Corte de Justicia ante la ley injusta: un fallo histórico respecto al llamado “anatocismo”. México, D.F.: Porrúa. Casson, D. and L. Scott. 1985. “Great Britain” in Shetreet and Deschenes: 146–148.

Bibliography  215 Cavarozzi, M. 1992, “Patterns of Elite Negotiation and Confrontation in Argentina and Chile” in Higley and Gunther 1992: 211–230. Cerna, 1998. “Organization and Examination of Petitions and Communications” in Harris and Livingstone 1998: 65–114. Christiano, T. 1996. The Rule of the Many: Fundamental Issues in Democratic Theory. Boulder, Colorado: Westview Press. Ciurlizza, J. 2000, “Judicial Reform and International Legal Assistance in Latin America” in Democratization, V.7, No. 2. Summer: 211–230. Cleary, E. 1997. The Struggle for Human Rights in Latin America. London: Praeger. Collier, D. (Ed.) 1979. The New Authoritarianism in Latin America. Princeton: Princeton University Press. Collins, H. 1982. Marxism and Law. Oxford: Clarendon Press. Coppedge, 1996. “Venezuela: The Rise and Fall of Partyarchy” in Dominguez and Lowenthal 1996: 3–19. Correa J. and M.A. Jiménez 1995, “Acceso de los pobres a la justicia en Chile” in Vanderschueren and Oviedo: 111–158. Cossio, J.R. 2001, “La Suprema Corte y la teoría constitucional”, Política y Gobierno. V.8 n.1. México City CIDE: 60–115. Couso, J. 2003, “The Politics of Judicial Review in Chile in the Era of Democratic Transition, 1990–2002” in Democratization 10 (4): 70–91. Crahan, M. 1982. “The Evolution of the Military in Brazil, Chile, Peru, Venezuela and Mexico” in Crahan (Ed.) Human Rights and Basic Needs in the Americas. Washington, S.C.: Georgetown University Press: 47–91. Cruz, C. and R. Diamant. 1998. “The New Military Autonomy in Latin America” in Journal of Democracy 9, October: 115–127. Cruz, F. 2000, Informe sobre independencia judicial en Costa Rica. Due Process of Law Foundation. www.dplf.org/Informe_-_Costa Rica.htm Cueva, A. 1991. “El Ecuador de 1960 a 1979” in Ayala 1991b: 149–179. Dahl, R. 1957, “The Concept of Power” in Behavioral Science V.2: 201–15. ——— 1971, Polyarchy: Participation and Oposition. New Haven and London: Yale University Press. Dakolias, M. 1993, Ecuador Judicial Sector Assessment. Center for the Administration of Justice—International University of Florida. Dandler, J. 1997. “Indigenous Peoples and the Rule of Law in Latin America: Do They Have a Chance?” in Mendez et al. 1997: 121–58. Davidson, S. 1998. “The Civil and Political Rights Protected in the Inter American Human Rights System” in Harris and Livingston (Eds.): 213–288. De la Jarra, E. 2001, Informe sobre independencia judicial en el Perú. Due Process of Law Foundation. www.dplf.org/informe_-_Peru.htm De Riz, L.1996. “Argentina: Democracy in Turmoil” in Dominguez and Lowenthal 1996: 147–165. De Souza, A. 1999. “Collor’s Impeachment and Institutional Reform in Brazil” in Rosenn, K. and R. Downes: 88–112. Diamond, L. 1999, Developing Democracies: Towards Consolidation Baltimore and London: The Johns Hopkins University Press. ——— ; J. Hartlyn; J. Linz and S.M. Lipset (Eds.) 1999. Democracy in Developing Countries: Latin America. 2nd. Ed. Boulder/London: Lynne Rienner Publishers. ——— ; J. Linz & S.M. Lipset (Eds) 1987. Democracy in Developing Countries: Latin America. Boulder, Colorado & London: Lynne Rienner. ——— 1995, Politics in Developing Countries: Comparing Experiences with democracies. 2nd. Ed. London: Boulder-Lynne Rienner. ——— & M. Plattner (Eds.) 1996, The Global Resurgence of Democracy Baltimore and London: The John Hopkins University Press.

216  Bibliography ——— (Eds.) 1996b. Civil-Military Relations and Democracy. Baltimore/London: The Johns Hopkins University Press. ———; Yun-han Chu & Hung-mao Tien (Eds.) 1997. Consolidating the Third Wave Democracies: Themes and Perspectives. Baltimore & London: The Johns Hopkins University Press. Dodson, M. 2002, “Assessing Judicial Reform in Latin America” in Latin American Research Review, v.37, n.2: 200–220. Domingo, P. 1993, “Political Role of the Judiciary” in Democracy in the Making? Political Parties and Political Institutions in Bolivia: 1985–1991. Ph.D. Thesis, Oxford University. ——— 1994. Rule of Law and Judicial Systems in the Context of Democratization and Economic Liberalisation: A Framework for Comparison and Analysis in Latin America. Mexico City: CIDE. ——— 1997. Judicial Independence: the Politics of Supreme Court Judge in Mexico. Mexico City: CIDE. ——— and R. Sieder (Eds.) 2001. Rule of Law in Latin America: The International Promotion of Judicial Reform. London: Institute of Latin American Studies–­ University of London/Biddles Ltd. Domínguez, J. and Lowenthal, A (Eds.) 1996. Constructing Democratic Governance: Latin America and the Caribbean in the 1990’s. Baltimore/London: The Johns Hopkins University Press. Donnelly, J. 1999, “Human Rights, Democracy and Development” in Human Rights Quarterly. August, v.21, n.3: 608–632. Dorsen, N. and P. Gifford (Eds.) 2001. Democracy and the Rule of Law. Washington: CQ Press (Congressional Quarterly Inc.). Dworkin, R. 1977, Taking Rights Seriously. London: Duckworth. Edwards, 1995. Crisis and Reform in Latin America: From Despair to Hope. Oxford. Elizondo, C. 1992, Property Rights in Mexico: Government and Business after the 1982 Bank Nationalisation. Ph.D. Thesis, University of Oxford. Elster, J. and R. Slagstad (Eds) 1998, Constitutionalism and Democracy. Cambridge University Press—Maison des Sciences de l’Homme, Paris and New York. Falcone, G. 1992. La lucha contra el crimen organizado: La experiencia de Giovanni Falcone. México City: INACIPE. Farber, G. (Ed.) 1996. Fobaproa, la bomba de tiempo. Mexico City: Time. Fiss O. 1993. “The Right Degree of Independence” in Stotzky 1993: 55–65. Fitch, S. 1998. The Armed Forces and Democracy in Latin America. Baltimore/ London: The Johns Hopkins University Press. Fix-Zamudio, H. 1997. “Reflexiones comparativas sobre las Cortes Europea e Interamericana de Derechos Humanos” en PNUD-CHDH Venezuela-Ministerio de la Secretaría de la Presidencia de la República de Venezuela. Gobernabilidad democrática y derechos humanos. Caracas: Nueva Sociedad: 61–89. Flathman, R. 1992, “Liberalism: the Case of the Rule of Law” in Shapiro 1992: 298–322. Forsythe, D. 2000. Human Rights in International Relations. Cambridge: Cambridge University Press. Foweraker, J. 1998, “Institutional Design, Party Systems and Governability: Differentiating the Presidential Regimes of Latin America” in British Journal of Political Science, 28: 651–676. ——— and R. Krznaric. 2000. “Measuring Liberal Democratic Performance: an Empirical and Conceptual Critique” in Political Studies, v.48: 759–787. ——— and T. Landman. 1997, Citizenship Rights and Social Movements: A Comparative and Statistical Analysis. Oxford: Oxford University Press (Oxford Studies in Democratization)

Bibliography  217 ——— , T. Landman and N. Harvey. 2003, Governing Latin America. Cambridge: Polity Press. Fowler, W. 2002. Latin America 1800–2000: Modern History for Modern Languages. London: Arnold. Friedenbery, E. 1971. “The Side Effects of the Legal Process” in Wolff 1971: 37–53. Früling, H. 1998. “Judicial Reform and Democratization in Latin America” in Agüero and Stark 1998: 237–58. Gargarella, R. 2003, “In Search of Democratic Justice—What Courts Should Not Do: Argentina, 1983–2002” in Democratization 10(4): 181–98. ——— 2003b, “The Majoritarian Reading of the Rule of Law” in Maravall and Przeworski 2003: 147–165. Garretón, M.A. 1996. “Human Rights in Democratization Processes” in Jelin and Hershberg 1996: 44–53. Geddes B. and A. Ribeiro 1999, “Institutional Sources of Corruption in Brazil” in Rosenn and Downes 1999: 22–44. Gilpin, R. 1987. The Political Economy of International Relations. Princeton, New Jersey: Princeton University Press. Gloppen, S; R. Gargarella and E. Skaar 2003, “Introduction: The Accountability Function of the Courts in New Democracies” in Democratization 10(4): 1–16. Goldblatt, 1997. “Democracy in the Long 19th Century, 1760–1919” in Potter Et. Al.: 50–4. Gómez, V. 1998, “The Interaction between the Political Actors of OAS, the Commission and the Court” in Harris and Livingstone 1998: 174–211. Gonzalez-Casanova, P. 1980. La Democracia en México. México City: Era. Guest, I. 1990. Behind the Disappearances: Argentina’s Dirty War Against Human Rights and the United Nations. Philadelphia: University of Pennsylvania Press. Hagopian, F. 1998. “Democracy and Political Representation in Latin America in the 1990s: Pause, Reorganization, or Decline?” in Agüero and Stark 1998: 100–126. Hamilton, A., J. Madison and J. Jay. 1966. The Federalist, edited by Benjamin Fletcher Wright. Cambridge, Massachusetts: Harvard University Press. Harris, D. and S. Livingstone (Eds.) 1998. The Inter-American System of Human Rights. Oxford/New York: Clarendon Press. Hartlyn and Dugas, 1999. “Colombia: The Politics of Violence and Democratic Transformation” in Diamond, Et. Al. 1999: 249–307. Hayner, P. 1994. “Fifteen Truth Commissions, 1974 to 1994: A Comparative Study” in Human Rights Quarterly 16, 4: 597–655. ——— 2002, Unspeakable Truths: Facing the Challenge of Truth Commissions. New York/London: Routledge. Held, D. 1996, Models of Democracy. 2nd Ed. Cambridge: Polity, Higley, J. and R. Gunther (Eds.) 1992, Elites and Democratic Consolidation in Latin America and Southern Europe. Cambridge: Cambridge University Press. Hirst, P. and Thompson, G. 2000. “Global Myths and National Policies” in Holden 2000: 49–58. Holden, B. 1993, Understanding Liberal Democracy. 2nd. Ed. New York and London: Harvester Wheatsheaf. ——— (Ed.) 2000, Global Democracy: Key Debates. London and New York: Routledge. Holston, J. and T. Caldeira. 1998. “Democracy, Law and Violence: Disjunctions of Brazilian Citizenship” in Agüero and Stark 1998: 263–296. Hoskin , G. 1998. “The State and Political Parties in Colombia”, in Posada-Carbo 1998: 45–70. Human Rights Watch, 1995. Report on the Latin American Situation of Human Rights.

218  Bibliography ——— 2004. Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela. HRW Report. V.16 No. 3(B) June 2004. Hunter, W. 1998. “Civil-Military Relations in Argentina, Brazil and Chile: Present Trends, Future Prospects” in Agüero and Stark 1998: 299–322. Huntington, S. 1991, The Third Wave: Democratization in the Late Twentieth Century. Norman and London: University of Oklahoma Press. ——— 1996, “Reforming Civil Military Relations” in Diamond and Plattner 1996: 3–11 ——— 1997. “Democracy for the Long Haul” in Diamond et.al. 1997: 4–13. ILANUD. Centro internacional para estudios penitenciarios 1999. Latin American Penitentiary System. Caracas, Venezuela: Comisión Latinoamericana por los Derechos y Libertades de los Trabajadores y Pueblos. http://cladehlt.org/study4 Inkeles, A. (Ed.) 1991. On Measuring Democracy: Its Consequences and Concomitants. New Jersey: Transaction Publishers. Inter-American Commission of Human Rights. 1996. Report on the Situation of Human Rights in Amayapampa, Llallagua and Caposirca, Northern Potosi, Bolivia. ——— 1997a. Report on the Situation of Human Rights in Brazil. ——— 1997b. Report on the Situation of Human Rights in Ecuador. ——— 1998. Report on the Situation of Human Rights in Mexico. ——— 1999. 3rd. Report on the Situation of Human Rights in Colombia. ——— 2000. 2nd. Report on the Situation of Human Rights in Peru. ——— 2001. 3rd. Report on the Situation of Human Rights in Paraguay. ——— 2003. Report on the Situation of Human Rights in Venezuela. Issacs, A. 1996. “Ecuador: Democracy Standing the Test of Time?” in Dominguez and Lowenthal 1996: 42–57. Jelin, E. and E. Hershberg (Eds.) 1996. Constructing Democracy: Human Rights, Citizenship and Society in Latin America. Boulder, Colo./Oxford: Westview Press. Jensen, E. and T. C. Heller (Eds.) 2003. Beyond Common Knowledge: Empirical Approaches of the Rule of Law. Stanford, Calif.: Stanford University Press: pp. 240–289. Karl, T. L. 1990, “Dilemmas of Democratization in Latin America”. Comparative Politics, v.23, no.1, Oct.: pp.1–22. Kaufman, S. and Roett, Riordan (Eds.) 1997. Brazil Under Cardoso. Boulder, Colo./ London: Lynne Rienner Publishers. Kelley, L. 1986, “Constitutional Forms and Realities” in Martz, J. & D. Myers. (Eds.) 1986, Venezuela: The Democratic Experience. Revised Edition, New York: Praeger. King, L.1985. “An Australian Perspective” in Shetreet and Deschenes 1985: 405–413. Krauze, E. 1997. La presidencia imperial: Ascenso y caída del sistema político mexicano, 1940–1996. México City: Tusquets. Kritz, N. (Ed.) 1995. Transitional Justice: How Emerging Democracies Reckon with Former Regimes. V.1. General Considerations. Washington, D.C.: U.S. Institute of Peace Press. Landman, T. 1999, “Economic Development and Democracy: The View from Latin America” in Political Studies, 47(4): 607–26. ——— 2000, Issues and Methods in Comparative Politics: an Introduction. London and New York: Routledge. LCHR (Lawyers Committee for Human Rights) 1996, Halfway to Reform: The World Bank and the Venezuelan Justice System. www.lchr.org/pubs/descriptions/ halfway.htm accessed on October 31, 2002. ——— 2000, Building on Quicksand: The Collapse of the World Bank’s Judicial Reform Project in Peru. www.lchr.org/pubs/perubuilding.htm accessed on October 31, 2002.

Bibliography  219 Leftwich, A. 1997, “Conclusion” in Potter Et Al. 1997: 519–533. Levine D. and B. Crisp, 1999. “Venezuela: The Character, Crisis and Possible Future of Democracy”, in Diamond et al. 1999: 374–405. Levy D. and K. Bruhn, 1999. “Mexico: Sustained Civilian Rule and the Question of Democracy”, in Diamond et al. 1999: 519–573. Lewis, P.H. 1980. Paraguay Under Stroessner. North Carolina: The University of North Carolina Press. Linz, J. and A. Valenzuela (Eds) 1994. The Failure of Presidential Democracy. Baltimore and London: The Johns Hopkins University Press. ——— and A. Stepan 1996. Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe. Baltimore and London: Johns Hopkins University Press. Lijphart, A. 1996. “Constitutional Choices for New Democracies”, in Diamond and Plattner, 1996: 163–73. Little, W. 1997 “Democratization in Latin America” in Potter et.al. 1997: 175–93. Loveman, B. 2001. “Historical Foundations of Civil-Military Relations in SpanishAmerica” in Pion-Berlin 2001: 246–74. Luna, M. 1997. “Bucaram, ¡¡Fuera!!: La voz de los movimientos profundos” in Varios 1997: 201–54. Lynch, J. 1986. The Spanish American Revolutions 1808–1826. 2nd Ed. New York/ London: Norton & Company. Machiavelli, N. The Discourses. London: Penguin Classics. Introduction by B. Crick, 2003. Mainwaring, S; G. O’Donnell and S. Valenzuela (Eds.) 1992. Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspective. Notre Dame, Indiana: University of Notre Dame Press. Mainwaring, S. and T. Scully (Eds.) 1995. Building Democratic Institutions: Party Systems in Latin America. Stanford University Press. Malloy J. and S. Mitchell, 1987. Authoritarians and Democrats: Regime Transition in Latin America. Pittsburg: University of Pittsburg Press. Maravall, J.A. 2003. “The Rule of Law as a Political Weapon”, in Maravall and Przeworski 2003: 261–299. ——— and Przeworski (Eds.) 2003. Democracy and the Rule of Law. Cambridge, Cambridge University Press. Martin, C.1996. El juicio a Carlos Andrés Pérez ¿Inocente o Culpable? Caracas, Venezuela: Arte Fotolitográfico. McAdams, J. 1997. Transitional Justice and the Rule of Law in New Democracies. Notre Dame, Indiana: University of Notre Dame Press. McCloskey, R. 2000, The American Supreme Court, 3rd. Ed. Revised by S. Levinson. Chicago/London: The University of Chicago Press. Méndez, J; G. O’Donnell and P. S. Pinheiro (Eds) 1999, The (Un)Rule of Law and the Underprivileged in Latin America. Indiana: University of Notre Dame Press. Messick, 1989. “Judicial Reform and Economic Development” in World Bank Research Observer. Feb, v.14, n.1: 117–36. Mettenheim, K. Von and J. Malloy (Eds) 1998. Deepening Democracy in Latin America. Pittsburg: University of Pittsburg Press. Mexico, SCJN (Suprema Corte de Justicia de la Nación). 1994. Informe del Presidente de la Suprema Corte de Justicia de la Nación, Lic. Ulises Schmill Ordóñez. Mexico City: Poder Judicial de la Federación. ——— 1998. Informe del Presidente de la Suprema Corte de Justicia de la Nación. Mexico City: Poder Judicial de la Federación. Mexico, SG (Secretaría de Gobernación) 2000. Los derechos humanos en México: Reporte preparado en ocasión de la visita de la visitadora de la ONU sobre Derechos Humanos, Mary Robinson. Mexico City: Talleres Gráficos de la Nación.

220  Bibliography Moncayo, H. 1995. “Acceso de los pobres a la justicia en Colombia” in Vanderschueren and Oviedo 1995: 83–105. Monsalve, E. 1981. La Corte Suprema de Justicia. Caracas, Venezuela: Publicaciones de la Corte Suprema de Justicia. Mouffe, Ch. 1988. “American Liberalism and its Critics: Rawls, Taylor, Sandler and Waltzer” in Praxis International, Vol. 8 no.2, July: 193–206. Mulhall, S. and A. Swift. 1992. Liberals and Communitarians. Oxford: Blackwell. Nye, J. Jr. 1996. “Epilogue: The Liberal Tradition” in Diamond and Plattner 1996: 151–6. Obando, R. 2002. Participación Ciudadana en Reforma Judicial. Santo Domingo: Comisión de Apoyo a la Reforma y Modernización de la Justicia. www.reforma -justicia.gov.do/particip%20ciudad.htm accessed on 18/06/2002. O’Donnell, G. 1994, “Delegative Democracy” in Diamond and Plattner 1996: 94–108. ——— 1999. “Horizontal Accountability in New Democracies” in Schedler et al 1999: 30–45. ——— 1999b.”Polyarchies and the (Un) Rule of Law in Latin America: A Partial Conclusion” in Mendez et al. 1999: 307–326. ——— 2000 “The Judiciary and the Rule of Law”, Journal of Democracy, v.11, n.1 (January). Ortiz-Alvarez, L. and J. Lejarza (comp.) 1997. Constituciones Latinoamericanas. Caracas, Venezuela: Biblioteca de la Academia de Ciencias Sociales y Políticas. Page, R. 1985. “Governance and Administration of the Courts in Latin America”, in Rowat Et. Al: 56–58. Panizza, F. 1995. “Human Rights in the Process of Transition and Consolidation of Democracy in Latin America” in Political Studies V.43: 168–188. ——— and Barahona de Brito, A. 1998. “The Politics of Human Rights in Democratic Brazil: ‘A Lei Nao Pega’ ” in Democratization 5(4): 20–51. Pastor, R. 1989, Democracy in the Americas: Stopping the Pendulum. New York and London: Holmes and Meier. Peeler, J. 1998. Building Democracy in Latin America. Boulder/London: Lynne Rienner Publishers. Piers, B. and R. Quinney (Eds.) Marxism and Law. New York: John Wiley & Sons. Pinheiro P.S. 1999. “Introduction” in Mendez et al. 1999: 1–19. Pión-Berlin, D. 1994. “To Prosecute of to Pardon: Human Rights Decisions in the Latin American Southern Cone” in Human Rights Quarterly 16, 1. February: 105–130. ——— (Ed.) 2001. Civil-Military Relations in Latin America: New Analytical Perspectives. Chapel Hill, North Carolina: University of North Carolina Press. Popkin, M. “Efforts to Enhance Judicial Independence in Latin America: A Comparative Perspective.” In USAID 2002:100–132. Posada-Carbo, E. 1998. Colombia: The Politics of Reforming the State. London/ N.Y.: St. Martin’s Press. Potter, D; D. Goldblatt; M. Kiloh and P. Lewis (Eds.) 1997. Democratization. Cambridge: Polity-The Open University: 550 p. Pridham, G. (Ed.) 1995. Transitions to Democracy: Comparative Perspectives from Southern Europe, Latin America and Eastern Europe. Aldershot, Cambridge: Dartmouth. Prillaman, W. 2000, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport and London: Praeger. Przeworski, A. 1992, “The Games of Transition” in Mainwaring, O’Donnell and Valenzuela 1992: 105–126. ———, S. Stokes and B. Manin (Eds.) 1999. Democracy, Accountability and Representation. Cambridge/New York/Melbourne: Cambridge University Press.

Bibliography  221 Rawls, J. 1972. A Theory of Justice. Oxford: Clarendon Press. ——— 1993. Political Liberalism. New York: Columbia University Press. Raz, 1977. “The Rule of Law and its Virtue” in Law Quarterly Review. April, 93: 195–211. Rial, J. 1993. “Providing for the Common Defense: What Latin American Constitutions Have to Say About the Region’s Armed Forces” in Greenberg, D. Et. Al. (Eds.) Constitutionalism and Democracy: Transitions in the Contemporary World. Oxford: Oxford University Press. ——— 1996. “Armies and Civil Society in Latin America” in Diamond and Plattner, 1996b: 47–65. Rico, J.M. 1993, La administración de la justicia en América Latina: Una introducción al sistema penal. Centro para la Administración de la Justicia. ——— 1997. Justicia penal y transición democrática en América Latina. México City: Siglo XXI. ——— and Salas, L. 1990, Independencia judicial en América Latina: replanteamiento de un tema tradicional. Miami: Centro para la Administración de la Justicia. Rock, D. 1987. Argentina 1516–1987: From Spanish Colonization to the Falklands War and Alfonsin. London: I.B. Tauris. Rodley, N. 1999. “Torture and Conditions of Detention in Latin America” in Mendez, Et.Al.: 27–39. Rodríguez, E. 2000, Informe sobre Independencia judicial en Bolivia. Due Process of Law Foundation. www.dplf.org/Informe_-_Bolivia. Roett, R. 1997, “Brazilian Politics at Century’s End” in Kaufman and Roett 1997: 35–42. Roniger, L. and M. Sznajder. 1999. The Legacy of Human-Rights Violations in the Southern Cone: Argentina, Chile and Uruguay. Oxford/New York: Oxford University Press. Rosenn, K. and R. Downes (Eds.) 1999. Corruption and Political Reform in Brazil: The Impact of Collor’s Impeachment. Miami: North-South Center Press—University of Miami. Rowat, M; Malik, W. and Dakolias, M. (Eds.) 1995, Judicial Reform in Latin America and the Caribbean. Washington D.C.: The World Bank. Technical Paper Number 280. Russell, P. and O’Brien, D. (Eds.) 2001. Judicial Independence in the Age of Democracy: Critical Perspectives from around the World. Charlottesville and London: University Press of Virginia. Saad, P. 1997. La caída de Abdalá: Un análisis actual. Quito, Ecuador: El Conejo. Sabine, G. 1973. A History of Political Thought. 4th. Ed. Hinsdale, Illinois: Dryden Press. Salas, L. 2001. “From Law and Development to Rule of Law: New and Old Issues in Justice Reform in Latin America” in Domingo and Sieder 2001: 17–46. San marino, M.L. 1996, Argentina contemporánea: de Perón a Menem. Buenos Aires: Ediciones Ciudad Argentina. Santiso, C. 2003, “Economic Reform and Judicial Governance in Brazil: Balancing Independence with Accountability” in Democratization 10(4): 161–80. Sarles M. 2001. “USAID’s Support of Justice Reform in Latin America”, in Domingo and Sieder 2001: 47–69. Schedler, A. 1999. “Conceptualizing Accountability” in Schedler, Diamond and Plattner: 13–25. ——— ; Diamond, L. and M. Plattner (Eds.) 1999, The Self Restraining State: Power and Accountability in New Democracies. Boulder and London: Lynne Rienner. Schor, M. 2002, The Rule of Law and Democratic Consolidation in Latin America. Tulane University. www.darkwing.uoregon.edu/-caguirre/schorpr.html accessed on June 3, 2002.

222  Bibliography Schumpeter, J. c1943, 1961. Capitalism, Socialism and Democracy. London: George Allen & Unwin. Sejersted, F. 1988, “Democracy and the Rule of Law: some Historical Experiences and Contradictions in the Striving for Good Government” in Elster and Slagstad, 1988: 132. Shapiro, I. (Ed) 1992, The Rule of Law (Nomos No. 36) New York and London: New York University Press. Shetreet, S. and J. Descheenes (Eds.) 1985, Judicial Independence: The Contemporary Debate. Dordrecht/Boston/Lancaster: Martinus Nijhoff Publishers. Shihata, 1995. “Judicial Reform in Developing Countries and the Role of the World Bank” in Rowat, et al. 1995: 222–25. Shugart, M. and J. Carey. 1992. Presidents and Assemblies: Constitutional Design and Electoral Dynamics. Cambridge/New York/Melbourne: Cambridge University Press. Solum, L.B. 1992, “Equitiy and the Rule of Law” in Shapiro 1992: 122–8. Sondrol, P. 2000 in Wiarda and Kline. Springer, A. 1998. Political Justice? Assessing the Role of Colombian Courts. Chicago: LASA. Stepan, A. 1971. The Military in Politics: Changing Patterns in Brazil. Princeton: Princeton University Press. ——— and J. Linz (Eds.) 1978. The Breakdown of Democratic Regimes: Latin America. Baltimore/London: Johns Hopkins University Press. Stepen, N. 1985, “Judicial Independence: A Fragile Bastion” in Shetreet and Deschenes 1985: 530–543. Stotzky, I.P. (Ed.) 1993, Transition to Democracy in Latin America: The Role of the Judiciary. Boulder/San Francisco/Oxford: Westview Press. ——— 2003, “Lessons Learned and the Way Forward” in Democratization 10(4): 198–203. Sullivan, K. and Mary Jordan. 2002, “In Mexico Hinderland: Life Beyond the Law” in Washington Post Foreign Service, March 15, 2002. http://www.pulitzer.org/ year/2003/international-reporting/works/post1.html Sumner, C. 1982, “The Ideological Nature of Law” in Piers and Quiney 1982: 255–61. Teitel, R. 2000, Transitional Justice. Oxford/New York: Oxford University Press. Thompson, D. c1962, 1981. Europe since Napoleon. London: Penguin. Thompson, A. 2002, “World’s biggest drug baron killed in Mexico” in The Observer, Sunday, March 10, 2002. http://www.guardian.co.uk/world/2002/mar/10/mexico. drugstrade Tindall, G. and D.E. Shi. c1996. America: a Narrative History. 4th. Ed. New York: Norton. Tirado, A. 1998, “Violence and the State in Colombia” in Posada-Carbo 1998: 111–24. Tulchin, J and Romero B. (Eds.) 1995, The Consolidation of Democracy in Latin America. London/Boulder: Lynne Rienner Publishers. U.N.D.P. (United Nations Development Program) 1998. Justicia y gobernabilidad. Venezuela: una reforma judicial en marcha. Caracas, Venezuela: Nueva sociedad. ——— 2004. La Democracia en America Latina: Hacia una democracia de ciudadanas y ciudadanos. Compendio Estadístico. U.N.C.H.R. (United Nations Commission on Human Rights.) 2002, Report of the Special Rapporteur on the Independence of Judges and Lawyers: Report on the Mission to Mexico. E/CN.4/2002/72/Add.1. Ungar, M. 2002, Elusive Reform: Democracy and the Rule of Law in Latin America. Boulder/London: Lynne Rienner Publishers.

Bibliography  223 Uprimmy, R. 2003, “The Constitutional Court and Control of Presidential Extraordinary Powers in Colombia” in Democratization 10(4): 46–69. U.S.A.I.D. (United States Agency for International Development) 2002, Guidance for Promoting Judicial Independence and Impartiality. Revised Edition. Technical Publication Series. Washington, D.C. Vargas, J. and M. Duce. 2000, Informe sobre independencia judicial en Chile. Due Process of Law Foundation. www.dplf/Informe_-_Chile.htm Varios. 1997 ¿Y Ahora qué . . .?: Una Contribución al análisis histórico-político del país. Quito, Ecuador: Eskeletra Ed. Vanderschueren, F. and Oviedo, E. (Eds.) 1995, Acceso de los pobres a la justicia en países de Latinoamérica. Santiago de Chile: SUR. Vega, F.1985, “Judicial Reform in Peru” in Rowat et al. 1985: 186–94. Verner, J. 1984, “The Independence of Supreme Courts in Latin America: A Review of the Literature” in Journal of Latin American Studies, v.16: 463–506. Verruga, C. 1997. “Ecuador: rompecabezas para armar” in Varios 1997: 296–300. Vescovi 1985. “Uruguay” in Shetreet and Deschenes 1985: 374–8. Weinstein, M. 1988. Uruguay: Democracy at the Crossroads. Boulder/London: West­view Press. Weschler, L. 1998. A Miracle, a Universe: Settling Accounts with Torturers. Chicago, Illinois: The University of Chicago Press. Whitehead, L. 1989,“The Control of Fragile Democracies” in Pastor: 1989. ——— 1992, “The Alternatives to ‘Liberal-Democracy’: a Latin American Perspective”, in Political Studies, XL, Special Issue: 146–159. Also in Pridham 1995: 307–319. Wiarda, H. J. 1990, The Democratic Revolution in Latin America: History, Politics and U.S. Policy. New York: Holmes & Meier. ——— 1993, Introduction to Comparative Politics: Concepts and Processes. Belmont, California: Wadsworth. ——— and H. Kline. 2000. Latin American Politics and Development, 5th. Ed. Boulder, Colo.: Westview Press. Wolff, R. (Ed.) 1971. The Rule of Law. New York: Simon & Schuster. Yashar D. 1996, “Indigenous Protest and Democracy in Latin America” in Dominguez and Lowenthal 1996: 91–104. Zagorski, P. 1992. Democracy vs. National Security: Civil Military Relations in Latin America. Boulder, Colo.: Lynne Rienner Publishers. Zakaria, F. 1997, “The Rise of Illiberal Democracy” in Foreign Affairs, 76, no.6: 22–43. Zaverucha, J. 1999, “Military Justice in the State of Pernambuco after the Brazilian Military Regime: An Authoritarian Legacy” in Latin American Research Review, v.34, No.2. Zinn, H. 1971, “The Conspiracy of Law” in Wolf 1971: 15–36.

Index

A Act of Settlement, England, 84. Alfonsín, Raúl, 119 Alternative Dispute Resolution mechanism (ADR), 64, 66, 67 Amparo, writ of, 75, 98, 103, 143, 144, 148, 154, 157 Anatocismo case, 107, 108, 111, 113 Aylwin, Patricio, 55, 101, 120, 121

Delegative democracy, 35–36, 88, 90 Diamond, Larry, 33, 35, 39, 53, 89 Disappeared persons, 119, 120, 124, 148, 151–152, 156, 157 Domingo, Pilar, 39, 107 Due process of law, 136, 137, 139, 140, 148, 151, 155–158, 167, 175, 176, 178, 182, 183, 187 Dworkin, Ronald, 21

B Berlin, Isaiah, 11 Borja, Rodrigo, 95 Bucaram, Abdalá, 36, 44, 92, 95–96, 102, 112

E Elite pacts, 39–40, 118 Executive-legislative relations, stalemate, 91 Ex parte communication, 163–164, 178

C Caldera, Rafael, 94 Caracazo outrage, 93, 132, 133, 154, 156 Carothers, Thomas, 56–57 Cardoso, Fernando Henrique, 120 Chávez, Hugo, 55, 102, 154, 155 Citizenship, concept, 23–24 Ciudad Juárez: See Juárez, Ciudad Collor de Mello, Fernando, 36, 44, 92–93, 96, 112, 120, 161 Condor Operation, 122 Constitucional Court, Chile, 131, 133, Colombia, 98, 101, 130, 145 Constitutional Tribunal, 96, 155, Ecuador, 98, Peru, 98, 105, 113, 154 Cubas, Raúl, 103 D Dahl, Robert, 12, 34, 36 Death squads, 152, 155, 156 Defensorías del pueblo, 64–65, 66, 143, 145, 152, 169

F Faceless judges, 56, 132, 133, 156, 174, 175 Fobaproa, 108, 111 Febres Cordero, León, 78, 95 Fox, Vicente, 145 Franco, Itamar, 93, 120 Frey, Eduardo, 122 Fuero militar, 114–117, 131–132, 134–135, 183 Fujimori, Alberto, 35, 55, 79, 85, 99, 104–106, 109, 113, 127, 132, 145, 154, 161, 164, 166, 183 G García, Alan, 36 Gaviria, César, 101, H Habeas data, 154 Habeas corpus, 98, 132, 139, 154, 183 Hobbes, Thomas, 21–22, 27 Holden, Barry, 13

226  Index Horizontal accountability, definition, 88, 181 Hurtado, Oswaldo, 95 I Inter American Commission of Human Rights, 125, 136, 137, 141, 142, 146–155, 183, 184 Inter American Court of Human Rights, 141, 146–147, 148, 154, 156 J Juárez, Ciudad, 109, 153 Judicial Council, 60–62, 65, 76, 85, in Argentina, Bolivia, Colombia, Costa Rica, Ecuador, Mexico, Peru 79, 105, Paraguay, Uruguay, Venezuela, 62, 76. Judicial reform, Argentina 75, Bolivia 76, Colombia, Chile, Ecuador 76, Mexico 75, 78, 79, Peru, 105, Paraguay 76, Uruguay, Venezuela L Liberal democracy, 24, 34, 90, 114, 116, 135, 162, 165, 180–182, 187 Liberalism, 12–17, 182, 184, 187 Linz, Juan, 2, 9, 32, 35, 187 Locke, John, 17 M Madison, James, 18, 88 Marxism, 24–26 Menem, Carlos, 35, 54, 75, 79, 99, 103–104, 113, 119, 133, 145, 151, 161, 164, 166, 183 Montesquieu, 17 N Nunca más report: see Rettig Report O O’Donnell, Guillermo, 16–17, 22, 33, 35–36, 42 Ombudsman office, 64, 66, 145, 158 P Paz Zamora, Jaime, 78, 104 Pérez, Carlos Andrés, 35, 36, 44, 55, 92, 93–94, 96, 112, 161 Pinochet, Augusto, 22–23, 55, 97, 121–122, 133, 134

Polo Uzcanga, Abraham, 176 Polyarchy, 9, 26, 29, 37, 42 Prillaman, William, 40–41, 176 Public defense system, see Defensorías del Pueblo. R Rawls, John, 13–15, 29 Reform of the State, 50–51 Republicanism, 15, 23, 182, 184, 187 Rettig report, 120 Rousseau, 27 Rule of law, definition of, 10, 12, 20–21 S Salinas, Carlos, 107, 168 Sarney, José, 120 Stepan, Alfred, 2, 9, 32, 187 Supreme Court, 141, 155, Argentina, 103–104, 109, 183, 184, Bolivia, 100, 104, 119, 184, Brazil, 83, 92–93, 101, 120, Colombia, 54, 83, 93, 101, 121–122, 131, 175, Costa Rica, 80, 83, 100, Ecuador, 95, 96, 102, 152, 163, Mexico, 54, 79, 97, 106–109, 113, 183, 184, Paraguay, 102, 184, Peru, 103, 105, 183, 184, Uruguay, 83, 85, 100, USA, 19, 24, 84, 89, 98, 99, 101, Venezuela. 94, 101–102, 112, 166 T Taquina Case, 104 Truth commissions, 118, 122 Tutelas, 98,110, 113, 143, 183 U U.S.A.I.D., 49, 56, 57, 174 V Velásquez, Ramón, 93 Vesco Case, 111, 112, 183 Vigilantism, 173 W Wasmosy, Juan Carlos, 103 World Bank, 56, 57, 105–106, 162 Z Zedillo, Ernesto, 106, 107, 109, 132, 183