Why is Strengthening the Rule of Law so Difficult?
One morning this year, in a windowless modern courtroom, Jorge Alberto Rodriguez faced justice. He was accused of driving a stolen car with changed number plates. The judge began by explaining his rights to him. His lawyer then tried to trip up the policemen whom the prosecution had produced as witnesses. To no avail: after an adjournment to allow a missing defense witness to appear via video link, the judge found Mr. Rodriguez guilty. That seemed to square with the evidence. Having been on bail for the nine months since his arrest, he was given a suspended sentence of five years and fined 15,000 pesos ($800).
Such a trial could have taken place in a British magistrate’s court. In fact, it was in Mexico City. The case was conducted under a radical judicial reform. This replaces an inquisitional model, long the norm in Latin America, under which judges investigated and evidence was all in writing, with an Anglo-Saxon adversarial system and oral trials. The new system has taken more than a decade to roll out and is more expensive. But it has several advantages. Fewer defendants are remanded to overcrowded jails, cases are heard more quickly, and the prosecution must publicly prove its case. Under the old system, judges relied on confessions (often extracted by torture).
Yet the reform is much criticized. Its introduction has coincided with a big rise in violence in Mexico. Although this was caused mainly by the fragmentation of criminal gangs and their move into new lines of business, many politicians blame the reform instead. Judges and prosecutors are insufficiently trained in the new ways and many are going back to “old policies,” such as relying on confessions and shelving cases that need investigation, says Sandra Serrano of Flasco, a research centre in Mexico City.
Mexico’s experience is not unique. Since the 1990s the main focus of judicial reform in Latin American has been on criminal procedures. In all, 15 countries have made the switch to the adversarial system. This is an improvement, but not a panacea. It “hasn’t reduced impunity, nor has it increased citizen trust in the system,” writes Luis Pasara, a Peruvian legal scholar.
Many Latin American countries have reformed their economies, electoral systems and welfare states. But establishing the rule of law is much harder. Courts depend on many other actors, especially police and prosecutors, as well as politicians and citizens. Judicial reform nearly always involves trade-offs, especially between independence and accountability. And better procedures do not in themselves create better judges or justice.
Take Peru, which made the procedural switch starting in 2004. While investigating a drug trafficking ring in Callao, police found calls to judges on suspects’ phones. That led to the exposure of “corruption, influence peddling, and the existence of organized networks inside the judicial system,” as a committee set up by Martin Vizcarra, the country’s president, reported last month. One judge was taped apparently arranging to absolve a suspect of raping a 13-year old girl: several had questionable contacts with politicians.
The president of Callao’s high court is now in jail. The justice minister and the seven members of the National Judicial Council, which appoints judges, were fired, while the head of the judiciary and the public prosecutor resigned. The case confirmed what Peruvians had suspected. Their courts are beholden to politicians and people who can pay.
Yet the scandal presents an opportunity. Mr. Vizcarra has proposed a referendum on the committee’s recommendations to appoint the judicial council and judges through a public competition, and to set up a similarly chosen body to scrutinize the judiciary. A referendum will have to be approved by congress, most of whose members belong to parties (Popular Force and APRA) that are thought to have undue influence over the judiciary. “These are people with an interest in not changing the current system,” the committee noted. Public anger may be strong enough to overcome resistance.
In Brazil’s Lava Jato corruption cases, judges and prosecutors have brought back many powerful figures to book, though they have occasionally committed excesses. Judicial reform in Chile, as well as Mexico, has produced some improvements. Peru has some honest judges and prosecutors. But public vigilance has to be sustained if a reformed judicial system is not to lapse into bad ways. The Spanish title of Mr. Pasara’s book translates as “An Impossible Reform.” But he concludes that the accumulated experience and a greater thirst for justice may mean the impossible is merely improbable.