JUDICIAL REFORM OF CRIMINAL JUSTICE IN LATIN AMERICA
Interns in the Office of the Assistant Secretary for Legal Affairs, most often law students in J.D. or
LL.M. programs in the city of Washington, contribute to the research efforts of the staff and occasionally
draft articles of interest for the website. Claudia Cano, a Fulbright scholar from Bolivia who pursued a
LL.M. degree at American University’s Washington College of Law, and Andy Chambers, a J.D. student
from Wyoming at American University, undertook the initial research for the article below. Yacine Barry,
a Swiss and French law student who has completed her LL.M. degree at the Georgetown University Law
Center, drafted the article. Timothy D. Rudy, a legal officer in the Secretariat for Legal Affairs, served as
their editor.
I. Introduction
Throughout Latin America, many countries have adopted extensive reforms of their
criminal justice systems. Far-reaching changes have been introduced to enhance democracy,
improve the protection of human rights and social justice as well as develop the economy and
enforce international law.1
In particular, these reforms impose “time limits on investigations, institute speedy trial
provisions, and establish more judicial oversight at all stages of the criminal process, including
pretrial detention.”2 More recently, the role of the key institutional actors in the criminal justice
system has become the focus of the reform efforts.3 These transformations “reflect a historic shift
from an inquisitorial system of justice -- the traditional model in Latin America -- to an
adversarial one.”4
This research article will briefly discuss restructuring criminal proceedings in Latin
America. The criminal justice reforms will first be placed in the larger context of the “rule of
law” movement. Undeniably, the reform agenda has grown and developed “in accordance with
the diversity of demands and expectations that are increasingly being placed upon the weak
democratic states of Latin America.”5 Such reforms essentially reflect a “response by powerholders, prompted either by electoral competition, or encouraged and indeed financed by donor
organizations, to confront this deep crisis of legitimacy.”6
After briefly describing the characteristics of the predominantly civil law tradition of
Latin American legal systems,7 the shift from an inquisitorial system to an accusatorial system
1
Pilar Domingo and Rachel Sieder, Rule of Law in Latin America: The International Promotion of Judicial
Reform, 1 (Pilar Domingo and Rachel Sieder ed., University of London, 2001) [hereinafter Domingo and
Sieder].
2
Jonathan L. Hafetz, Pretrial Detention, Human Rights, and Judicial Reform in Latin America, 26
Fordham Int’l L. J. 1754 (2003).
3
Id. at 1772.
4
Id. at 1754.
5
Domingo and Sieder, supra note 1, at 152.
6
Id. at 151.
7
Dr. Enrique Lagos, The Coexistence of Legal Systems in the Americas From an OAS Perspective, 2000,
available at:
http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/documents/eng/publications.asp
(last visited Dec. 16, 2003) (“Those OAS Member States which follow the civil law tradition include:
Argentina, Bolivia, Brazil, Chile, Columbia, Costa Rica, the Dominican Republic, Ecuador, El Salvador,
2
induced by these reforms will be examined. Indeed, a number of these civil law countries shifted
from a criminal procedure with a judge-oriented model to a party-centered procedure. Finally,
while the success of ongoing reforms is still to be determined, this article will suggest that there
clearly exists overall a strong expectation for success.
II. State Reform and the Rule of Law
Judicial reform initiatives in the area of criminal procedure are part of a wider political
and developmental process of “state reform” in Latin America.8 The guiding principle of state
reform is the promotion of the rule of law. “An enduring consolidation of democracy will require
strengthening the rule of law (and public confidence in the rule of law), and the rule of law
requires a greatly strengthened judicial system.”9 The rule of law agenda of the 1990s focused on
strengthening democracy, facilitating “market rule” and answering social concerns.10
Therefore, an accurate definition of the rule of law could include: respect for political and
civil rights; equality of treatment before the law; effective due process guarantees; accountability
of government officials; efficient administration of justice; equal access to the law; and, a clear
regulatory framework for economic activity.11 The “rule of law” is a broad notion that
encompasses more than the institutional dimensions of the law that are currently being reformed.
Accordingly, judicial reforms are directed at addressing in part those aspects of the rule
of law that support democratic consolidation, which include: an independent judiciary; an
accountable and transparent government; the protection of human rights, and, an effective due
process.12 In this process, the state is instrumental in the success of any rule of law reform.
Further, it can become its strongest ally or its biggest hurdle.13
III. Motivating Forces for Reform
A. Internal initiatives
As noted above, the reform agenda is related to internal public demands and expectations
within Latin American states.14 Cutting crime would consolidate democracy and help the
economy in Latin America. With an increase in crime, “the demand for security has become one
Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay and
Venezuela.”).
8
Domingo and Sieder, supra note 1, at 142.
9
Michael Dodson, Assessing Judicial Reform in Latin America, 37 Latin America Research Review 200,
200-201 (2002) (book review).
10
Domingo and Sieder, supra note 1, at 143.
11
Id. at 147.
12
Id at 155.
13
Mark Ungar, Elusive Reform: Democracy and the Rule of Law in Latin America, 17 (Lynne Rienner
Publishers, Inc., 2002).
14
Domingo and Sieder, supra note 1, at 152.
3
of the main issues and sources of popular unrest”15 and the lack of judicial performance is also
blamed for the rise of organized crime.16
Domingo and Sieder state that three factors contribute to negative perceptions of the
justice system in Latin American states. They are the historical arbitrary behavior by the state,
the elite’s tendency to operate beyond the boundaries of the law, and the difficulty state
institutions encounter dealing with violence and organized crime.17 Rule of law reforms,
specifically in the area of criminal procedure, are aimed at curing this crisis of legitimacy.18
The main challenge of judicial reform in Latin America is the “subordination of political
power to law.”19 Strong support by the national political elite as well as the citizenry is also
required to create a better judicial system.20
B. The Role of External Donor Organizations
International interests and financial input promoting legal reform are not new phenomena
in Latin America. The current effort can be thought of as an extension of the law and
development movement of the 1960s, the human rights movement of the late 1970s and 1980s as
well as a set of administration of justice programs from the United States since the mid-1980s.21
Foreign countries and international organizations “have expanded the initial operating
assumption of the US administration of justice programme--that democracy requires an
independent, effective judiciary--to the much broader notion that the rule of law generally is
critical to democracy.”22
Undeniably, this effort is not an isolated event. It has been supported by major
international organizations seeking to deepen democracy and facilitate market reform processes.23
A range of bilateral agencies--such as those in the United States, Germany, Canada, Spain,
Sweden and Japan--as well as international organizations -- such as the European Union, the
Inter-American Development Bank (IDB), the World Bank and the United Nations (UN)--also
have funded rule of law programs.24
USAID remains the lead organization in judicial reform programs in general and in
criminal justice restructuring in particular.25 Another prominent actor in criminal law
15
Jorge Correa Sutil, in The (Un)rule of Law and the Underprivileged in Latin America 266 (Juan E.
Mendez, Guillermo O’Donnell and Paulo Sergio Pinheiro ed., University of Notre Dame Press 1999).
16
Id.
17
Domingo and Sieder, supra note 1, at 151-52.
18
Id. at 150-151.
19
Dodson, supra note 9, at 219.
20
Id. at 202 and 219.
21
Thomas Carothers, The Many Agendas of Rule of Law Reform in Latin America, in Domingo and
Sieder, supra note 1, at 5.
22
Id. at 7.
23
Id. at 11.
24
Luis Salas, From Law and Development to Rule of Law: New and Old Issues in Justice Reform in Latin
America, in Domingo and Sieder, supra note 1, at 24-25.
25
Juan Enrique Vargas Viancos, Lessons Learned: Introduction of Oral Process in Latin America 3 (InterAmerican Development Bank, May 1996).
4
transformation in Latin America is the Inter-American Development Bank (IDB).26 A number of
countries recently have requested loans from the IDB to finance reforms including: “El Salvador,
Costa Rica, Colombia, Panama, Honduras, Guatemala, the Dominican Republic, Peru, Argentina,
Uruguay and Bolivia. In other countries, such as Ecuador, Paraguay and Venezuela, the IDB is
financing technical assistance for the judicial sector. In numerous additional countries in the
region, including Brazil, Chile and Nicaragua, the Bank is funding the development of alternative
dispute resolution mechanisms.”27 The World Bank, on the other hand, although a major actor in
legal and judicial reforms in the region, has only had a small input in criminal justice
transformation.28
IV. Latin America, a Predominantly Civil Law System
One author distinguishes three main legal traditions in the contemporary world: the civil
law, the common law and the socialist law legal families.29 Latin American jurisdictions have a
predominantly European-inspired civil law system. These legal systems generally “amalgamated
and reconciled principles of” French, Spanish, Portuguese, Italian, and German law. 30 Although
the common law and civil law traditions share similarities in social objectives (individualism,
liberalism and personal rights) and function,31 there are significant differences. This section
addresses those characteristics relevant to the criminal justice system that differentiate between
the two models.
In a civil law nation, “the traditional notion about criminal procedure is a set of rules that
defines the different roles and means to achieve a simple goal, the truth. The detailed rules are
part of a code that is the dominant authority to regulate the proceedings.”32 “The civil law
tradition is statute-bound: legislatures draft statutes, rules, and directives setting forth the law in
advance. Courts apply and interpret the law, but do not create it.”33 On the other hand, in a
common law nation, the system emphasizes case law focusing on individual cases. Within the
common law tradition, “[c]ourts fashion the law on a case-by-case basis, building on precedent to
fill the gaps over time.”34
Differences between both traditions may be further described as follows:
“Under an adversarial system, the litigants are in charge. They develop their
cases, presenting the evidence that is most favorable, and leaving it to their
26
Christina Biebesheimer and J.Mark Payne, IDB Experience in Justice Reform: Lessons Learned and
Elements for Policy Formulation (Inter-American Development Bank, 2001), i, 15 available at:
http://www.iadb.org/sds/doc/sgc-IDBExperiences-E.pdf (last visited Dec. 16, 2003).
27
International Development Bank, The IDB and Judicial Reform, available at:
http://www.iadb.org/idbamerica/archive/sidebars/1999/eng/e1299s3.htm (last visited Dec. 16, 2003).
28
Legal Vice Presidency, The World Bank, Legal and Judicial Reform: Observations, Experiences, and
Approach of the Legal Vice Presidency, 40-41 (The International Bank for Reconstruction and
Development/The World Bank ed. 2002).
29
William Tetley, Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified), 60 LA. L.
Rev. 677, 682 (2000).
30
Jorge L. Esquirol, The Fictions of Latin American Law (Part I), 1997 Utah L. Rev. 425, 462-463 (1997).
31
Tetley, supra note 29, at 700.
32
Carlos Rodrigo de la Barra Cousino, Adversarial vs. Inquisitorial Systems: The Rule of Law and
Prospects for Criminal Procedure Reform in Chile, 5 Sw. J. L. & Trade Am. 323, 340 (1998).
33
Alfred W. Cortese Jr. and Kathleen L. Blaner, Civil Justice Reform in America: A Question of Parity with
our International Rivals, 13 U. Pa. J. Int’l Bus. L. 1, 5 (1992) (footnote omitted).
34
Id. (footnote omitted).
5
adversary to negate or discredit their position. Presented with two conflicting
sides to the dispute, the neutral judge or jury hears the conflicting evidence,
decides what the truth is, and determines which side should prevail. In an
inquisitorial system, the judge is the primary actor, actively seeking evidence
from both sides, directing the parties’ actions, and providing constant
commentary on the quality of the case and the likely outcomes.”35
Finally, the civil law system emphasizes policymaking whereas the Anglo-American
model’s main objective is to solve conflicts.36 That model “relies more on case by case method
rather than general and abstract rules.”37
V. Shifting from an Inquisitorial to an Accusatorial Model
The initial emphasis of criminal justice reforms in Latin America has been procedural
change with “a transition from the inquisitorial system, which many blamed for a series of vices,
to a more accusatory one.”38 Most of these reforms were enacted during the 1990s.39 They
substituted oral and accusatorial procedures for written and inquisitorial ones and transferred
“control over criminal prosecution from judges and the police to the MP [Ministerio Publico].”40
This effort was triggered by a need to overcome the criminal procedure biases inherited
with the European codes.41 Examples of possible “flaws” with the old approach to the criminal
justice system were thought to be: a heavy reliance on written material slowing the process; a
built-in bias against defendants; poor representation and access of defendants to materials; and an
absence of vigilant investigations by judges and police resulting in low due process standards.42
Most of the problems in Chile, for example, were thought to relate to the “absence of an
independent judge to counteract potential bias during the investigation stage; lack of investigative
capacity of the judges, . . . ; judicial delay; low standards of protection for defendants who do not
have access to files, with some few exceptions[;]delegation of major judicial functions in the
police and court clerks; absence of legal control of the police.”43
Although reform responses to such problems in Latin America vary, two mainstream
elements are being incorporated from the common law system to counter these perceived “flaws”:
oral arguments and new roles for the judge, the public prosecutor, and law enforcement officers.
A. Oral Arguments
35
Id. (footnotes omitted).
De la Barra Cousino, supra note 32, at 335.
37
Id.
38
Linn A. Hammergren, Donor-Supported Reforms of Criminal Justice Systems, available at:
http://www1.worldbank.org/publicsector/legal/donor.htm (last visited Dec. 16, 2003).
39
Ungar, supra note 13, at 144 (see Table 4.2 Penal and Penal Process Code Reforms, Post-1990).
40
Id. at 144 (MP stands for Ministerio Publico, the Justice Department or Attorney General’s office
responsible for prosecuting cases on behalf of the state).
41
Id. at 143.
42
Id. at 143-144.
43
De la Barra Cousino, supra note 32, at 325-326.
36
6
Following the tradition of the adversarial system, public justice (“justice for audiences”)
or the substitution of notarized and recorded legal proceedings for public and oral trials has
become the center of justice sector reforms.44 “Several Latin American countries, including
Argentina, Bolivia, Costa Rica, El Salvador and Guatemala, have chosen to revise their criminal
procedural codes to incorporate oral procedures.”45
The objective of such a change is a new legitimacy for the criminal proceedings as a
whole.46 One specialist argues “[o]ral procedures have allowed for public trials, which, in turn,
has helped make judges publicly accountable for their decisions.”47 Public justice also involves
“direct contact by the parties with the judge; transparency and control; cross examination;
presentation of evidence and rebuttal; case consolidation and speed . . . .”48
Moreover, this change leads to new roles for the participants in the criminal trial. “More
recently, the emphasis has shifted to changing how key organizational actors behave by recreating
or reorganizing police forces, prosecution agencies, and public defender offices.”49
B. New Roles for the Judge, the Public Prosecutor, the Defense Attorney and the Law
Enforcement Officers
New roles for the police, the prosecutors and the judges in the investigation and
prosecution stages have been a major new feature of the criminal code reforms in Latin America.
With these reforms, the prosecution directs the case investigation and retains better control over
the police. On the other hand, the judge serves as an “impartial decision-maker” as he or she is
relieved from the investigation process.50 This criminal procedure reform creates a logic of
competition among the institutions. The defense and the prosecution are now interested in
assuring the best interests of their clients.51 However, the main challenge has been changing the
legal culture while keeping the same actors.
Formerly, according to the inquisitorial practice, the judge, rather than the parties, was
responsible for developing the facts at trial. In addition, the judge had “an obligation to
determine whether or not the defendant is guilty.”52 Within the civil law system, the prosecutor’s
main task is to make sure that the dossier contains all the relevant inculpatory and exculpatory
evidence, and all relevant information on the background of the defendant.53 The involvement of
44
Vargas Viancos, supra note 25, at 1.
Maria Dakolias, The Judicial Sector in Latin America and the Caribbean: Elements of Reform 34 (The
World Bank, 1996).
46
Vargas Viancos, supra note 25, at 1.
47
Id.
48
Id. at 1-2.
49
Hafetz, supra note 2, at 1772.
50
USAID (Office of Democracy and Governance), Achievements in Building and Maintaining The Rule of
Law, Occasional Papers Series, 4 (2002), available at: http://www.usaid.gov/democracy/pdfs/pnacr220.pdf
(last visited Dec. 16, 2003).
51
Cristian Riego and Juan Enrique Vargas, Criminal Justice Reform in Latin America: Successes and
Difficulties, 7-8 (2003), available at: http:www.iadb.org/sds/doc/SGC-Panel_II_EN3.pdf (last visited Dec.
16, 2003).
52
William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of
Comparative Criminal Procedure, 54 Ohio St. L. J. 1325, 1333-1334 (1993).
53
Id. at 1350.
45
7
the prosecutor and the defense attorney at trial was generally limited to asking a few follow-up
questions or perhaps tactfully suggesting other lines of inquiry to be pursued by the witnesses.54
By contrast, in accordance with common law tradition, the prosecutor is “armed with a
broad discretion.”55 Prosecutors “feel personally responsible for the outcome of their cases, in
part because the adversary system accepts the consequence that the outcome of a trial may be a
reflection of the quality of the advocacy. Because jury trials require considerable preparation,
prosecutors generally do not want to file charges against a defendant unless the chances of
convicting the defendant are very good.”56
VI. Country Studies
The criminal justice transformations in the countries of Peru, Bolivia and Chile will be
discussed briefly as concrete examples of these reform efforts.
A. Peru
Linn A. Hammergren, a specialist of Latin American and Caribbean judicial reform, has
described the process of criminal code modification in Peru with great detail.57 Peruvian criminal
procedures were thought to be progressive with the introduction of the oral trial in 1920 and an
enhanced role for the Public Ministry even prior to the 1990s.58
The 1991 procedural code eliminates any conflict of interest for judges and ensures a
public trial for criminal cases. Indeed, with this reform of the 1940 procedural code, the Public
Ministry (fiscal) conducts the investigation and presents the case for the prosecution to the
judge.59 The new code also “converts the juez de instruccion into a juez penal, who will monitor
the fiscal’s investigation and then either decide and sentence or present the case to the superior
trial court.” Consequently, judicial investigation no longer duplicates the efforts already done by
the police and is transferred to the fiscal.60
By 1991 and 1994, the Public Ministry was vested with the sole responsibility of the
indictment and thus of the initial conduct of the trial.61 As a result, the role of the Peruvian judge
is redefined and that magistrate has a lesser role here.
Finally, the new code provides for an oral hearing and an adversarial process. However,
Hammergren doubts the actual introduction and implementation of an oral and accusatory system.
Rather, she finds that the new procedures retain much of the inquisitorial tradition.62 These
54
Id. at 1334.
Id. at 1327-1328.
56
Id. at 1349.
57
Linn A. Hammergren, The Politics of Justice and Justice Reform in Latin America: The Peruvian Case in
Comparative Perspective, 113-134 (Westview Press, 1998).
58
Id. at 117.
59
Id. at 119.
60
Id at 122-123.
61
Id. at 128.
62
Id. at 128-130.
55
8
innovations are bound to be adopted in the long run with political support, a variable that is
essential for innovations to be adopted.63
B. Bolivia
A new criminal procedure code was enacted in Bolivia as Law No. 1970 on March 25,
1999. This new criminal procedure code, which was formerly rooted in the civil law tradition,
entered into effect in 2001. The code introduces new elements such as jury trials, oral arguments
and other elements characteristic of the common law system.
The reform process in Bolivia began in 1993 with the passage of a Law of Judicial
Organization, reforms of the Bolivian Constitution and drafts of other statutes.64 Thus, the reform
of the Criminal Procedure Code is only one aspect of the entire process in that country.
Bolivian authorities recognized the need to reform the judicial system in order to
“overhaul the antiquated Bolivian code of criminal procedures.”65 The achievements they sought
with the proposed criminal code included: “the democratization of justice through use of juries; a
changed view of and role for victims of crimes; the simplification of processes, largely to reduce
costs and delays but also to ensure greater transparency of the proceedings and accountability by
the parties; and stronger defense of constitutional guarantees for defendants.”66
Within that understanding, the new Criminal Procedure Code of Bolivia takes the oral
argument element from the common law system, and introduces it as a standard procedure in
criminal cases.
“This change would imply a shift from what is generally termed an ‘inquisitorial’
system to an accusatorial one, with a concomitant major reduction in the power
of Bolivian judges, who currently conduct investigations and then rule in all
cases brought before a court. Defense lawyers, who until now have been
marginal in judicial proceedings, would be asked to assume a much more active
and important role. And for the first time in Bolivia, the defense and the
prosecution would have opportunities to confront each other in court, whereas
before all phases of trial were captured only in documents whose flow and
distribution the judges and court secretaries controlled. Often, defendants never
got to see the charges lodged against them nor the supporting evidence.”67
Although it is too early to evaluate whether the reforms in Bolivia achieved their goals,
one can regret the lack of involvement of civil society. “To date, the reform has been primarily
one of elite opinion leaders.”68
63
Id. at 130.
Lawyers Committee for Human Rights, Advancing Judicial Reform: An Environmental Case Study in
Bolivia, available at: http://www.uoregon.edu/caguirre/bolivia.html (last visited January 17, 2004).
65
Id.
66
Id.
67
Id.
68
USAID (Office of Democracy and Governance), supra note 50, at 38.
64
9
C. Chile
Chile, a neighboring country to the other two examples, confronted with equivalent
expectations for accountability, transparency and modernity, enacted similar far-reaching changes
in order to consolidate its democracy.
The Chilean criminal procedure was also a “product of the inquisitorial system inherited
from Spain during the colonial period.”69 After the Pinochet dictatorship, a strong drive for
reform arose with the goal of protecting human rights. “The basic idea of the reform was to
‘democratize’ the judiciary by opening its structures to a new institutional framework.”70
The judicial reform of the criminal area in Chile is part of the reform process of the entire
Chilean legal system. The goal of the Chilean legislature is to conclude the process by 2005. On
September 9, 1997, President Eduardo Frey began the process by implementing a constitutional
reform.71 This reform was intended to allow the creation of the Public Ministry, which would be
similar to the Public Prosecutor’s office. As a result, Congress enacted a constitutional
amendment in December 1997 creating a Public Prosecutor’s Office.72
In the new code, the public prosecutor acquires the important role of directing the
criminal investigation, which used to belong to the judge. Consequently, the prosecutor
formulates the accusation, presents the charges, and has the burden of proof during the trial. The
purpose of the figure of the public prosecutor is a response to “both efficiency and due process
concerns of an impartial court.”73 The judicial reform also will utilize oral proceedings instead of
written ones as well as a public defense institution that will represent defendants. According to
one author, by 1998, public defender agencies as well as a court-assigned counsel system were
available.74
Implementation of the new criminal procedure code itself was done gradually. It began
in 2000 in the Fourth Region and Ninth Region, in 2001 in the metropolitan area, and in 2002 in
the whole country. Therefore, it is still too early to be able to discuss the success of the new
enactments.
VII. Goals, Obstacles and Achievements: Reform Strategies
The reforms described in this research article focused essentially on criminal
proceedings. In reality, the changes embrace a more sectoral approach. Most reform efforts
focus on courts, police and prisons.75 The fundamental issue yet remains whether these legal
reforms may be implemented in reality.76
69
De la Barra Cousino, supra note 32, at 325.
Id. at 324.
71
Unidad de Modernizacion Judicial de la Comision Andina de Juristas, Reforma y Modernizacion
Judicial, Chile 1997, available at: http//www.cajpe.org.pe/RIJ/BASES/REFORMA/CHI.htm (last visited
January 20, 2004).
72
De la Barra Cousino, supra note 32, at 327.
73
Id. at 332.
74
Id. at 350.
75
Hammergren, supra note 57, at 13.
76
Id. at 25.
70
10
A. Internal participation
Factors such as the political will of power-holders, the technical quality of the laws
enacted and whether the legal changes respond to the expectations of improvement of the justice
system are crucial to the success of the reform movement.77
One of the principal obstacles to a successful reform may be the state.78 “The rule of law
depends not only on the judicial branch, however, but also on a range of nonjudicial state
agencies, from the Justice Ministry to local police forces.”79 In this respect, many changes that
are introduced affect the governmental structure by shifting the exercise of power. Therefore, a
favorable judicial environment and strong commitments from the executive branch are required to
further implement changes.80
A reform should also be consensual to be successful. It should involve the participation
of judges, trade and bar associations, the academic community, the police and above all civil
society.81
B. External Intervention
Finally, a reform requires contribution by donors, which match the needs and
particularities of “the local political, social, and economic context.”82 Certainly “[f]ormulaic,
technocratic fixes divorced from the local context are doomed to failure, but appropriated,
engaged and politically sensitive support can help advance a rule of law agenda.”83 Moreover,
donors and recipients of rule of law projects have numerous objectives that potentially conflict
and could be perceived very differently.84
At times, reform agendas may conflict or be seen as competing because of the different
parties involved.85 At other times, they can be reinforcing as complementary parts of a broader
process of state reform.86 In any event, “a multiplicity of agendas . . . can be problematic.” 87
Improvements could come from “[b]etter transparency in the design and management of
reform[,]” improving “information flows and cooperation” between donor agencies, and avoiding
duplication of reform efforts on a regional level.88
77
Id. at 25-26.
The “state” refers here to the executive branch of government. See, e.g., Hammergren, supra note 57, at
282-84.
79
Ungar, supra note 13, at 17.
80
Vargas Viancos, supra note 26, at 11-13.
81
Id. at 15-16.
82
Domingo and Sieder, supra note 1, at 164.
83
Id.
84
Carothers, quoted in supra note 1, at 1.
85
Domingo and Sieder, supra note 1, at 143-144.
86
Id at 144.
87
Id.
88
Id.
78
11
The scholar Carlos Peña Gonzalez has noted that normative changes are not enough: “A
policy for legal reform demands that vision be coupled with a realistic appraisal of what can be
accomplished.”89
VIII. Conclusion
Judicial reform advances a range of objectives, including “democratic governance,
economic stability, respect for human rights, social justice and citizen security.”90 Without a
doubt, more recently, the rule of law is promoted under the cloak of democracy and market
promotion rather than under goals of development and modernization as in former years.91
One author suggests that “strengthening traditional institutions”92 rather than adopting an
oral and adversarial system would have better served the region’s interest.93 Hammergren
concurs by questioning whether “the inquisitorial system was really the problem.”94 Keeping in
mind that these reforms seek for the most part to enhance human rights, help countries combat
increasing violence and crime, which create a hostile environment for investment, they attempted
to set goals and objectives for the elimination of unwanted practices.95
These reforms “afford genuine opportunities and hope for due process and a fair trial, and
have elevated the standards of individual rights, guarantees, accessibility, accountability,
transparency, and public debate. They hold promise to achieve the goals of combating impunity
while better protecting the rights of defendants.”96
The achievement of legal certainty, transparency and accountability through judicial
reforms are objectives central to the development of democracy and a peaceful society that
promotes human rights and economic development. James D. Wolfensohn, president of the
World Bank, summarizes this idea as follows:
“. . . unless you have equity, unless you have justice, unless you address the
issues of poverty, there can be no peace.
“And without legal and judicial reform, in my judgment there can be no
peace.”97
89
Carlos Pena Gonzalez, The Modernization of the Judicial System, 1 (1997), available at:
http.//www1.worldbank.org/publicsector/legal/PenaSummitEng.doc (last visited April 12, 2004).
90
Domingo and Sieder, supra note 1, at 1.
91
Id. at 142.
92
Luz Estella Nagle, The Cinderella Government: Judicial Reform in Latin America, 345 Cal. W. Int’l L. J.
358 (2000).
93
Id.
94
Hammergren, supra note 38.
95
Id.
96
USAID (Office of Democracy and Governance), Achievements in Building and Maintaining the Rule of
Law 5 (2002), available at: http://www.usaid.gov/democracy/pdfs/pnacr220.pdf (last visited Dec. 16,
2003).
97
J. D. Wolfensohn, quoted in: Federal Ministry for Economic Cooperation and Development, Legal and
Judicial
Reform
in
German
Development
Cooperation,
available
at:
http://www.bmz.de/en/media/spezial/spezial064/10.html (last visited January 20, 2004).