ISSN 1062-7421
Vol. 10 No. 8 (August 2000) p. 505-508.
THE JUDICIARY AND DEMOCRATIC DECAY IN LATIN AMERICA by William C. Prillaman. Westport, Connecticut: Praeger
Publishers. 198 pp. Cloth $64.50 ISBN: 0-275-96849-9 Paper $22.50. ISBN: 0-275-96850-2.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
This is a book with an ambitious goal - to work "toward a theory of judicial reform in Latin America - although
the analyses on which it rests are case studies of El Salvador, Brazil, Argentina and Chile. To be sure, Prillaman's
comparative analysis of these four countries is a step beyond the mostly country-specific research that represents
much of the work on judicial reform in Latin America, but it might well be that one study of the legal and judicial
systems in Costa Rica, El Salvador, Guatemala and Honduras and a separate study of those in Argentina, Brazil and
Chile might have been produced interesting, disparate and useful results. El Salvador
certainly has precious little in common with the ABC countries of South America and while it is next door to Guatemala,
there are clearly some important
differences between the two countries, most notably the critical importance of indigenous people in Guatemala.
Yet, the theory to which Prillaman aspires is not particularly complex and seems potentially to be one of general
applicability. At this stage of Prillaman's work, however, his is not a theory but rather a checklist of three
variables that might be used in evaluating the efficacy of judicial reforms, if only we could find reliable measures
for them. Even so his work is a step forward, for most of the literature on judicial reform in Latin America is
almost entirely atheoretical.
Prillaman writes that his interest in judicial reform is a subset of efforts to understand democratic consolidation
in Latin America. The literature on democratic consolidation is vast and growing apace, though its treatment of
judicial systems has been, until recently, quite sparse. His interest in the role of the judiciary is based on
its potential roles in checking the executive and legislative branches (this is horizontal accountability according
to O'Donnell 1999, 2000a, 2000b), in supporting
sustainable economic development (protecting property rights and providing legal "predictability), and in
building popular support for the rule of law within a democratic regime. Another scholar might have dwelt somewhat
more on the judiciary's potential for ending the impunity for those in power who have so often violated human rights
of their citizens and for enabling the protection of the human rights of ordinary citizens, but presumably the
rule of law is broad enough to encompass all these goals.
Prillaman proposes that judicial reforms ought to be measured by their success in creating or sustaining judicial
independence, efficiency and access. Each of these concepts has proved slippery in the literature, particularly
judicial independence. Prillaman mentions Owen Fiss's definition of judicial independence, which the one that
one that I personally favor. Fiss has three
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principles of judicial independence: (1) "party detachment"(a judge should not be subject to the undue
influence or control of the parties before the court), (2) "individual autonomy" (a judge should not
the subject to the inappropriate influence by another judge or judges), and (3) "political insularity"
(a judge should not be subject to undue influence or control by other branches of government (Fiss 1994). Prillaman's
most important contribution in this connection is his discussion
of judicial accountability, a point recently emphasized by Linn Hammergren (1998) as well, and one that must come
to the mind of any scholar who seriously reflects on the meaning of judicial independence (see Dodson, Jackson
and O'Shaughnessy 1997). In the end, the key difficulty with studying judicial independence is more likely that
of measurement than of conceptualization. Prillaman asserts that, "judicial independence can be measured
by broadly tracking the willingness of the courts to rule against the government in important human rights cases
. . ." (p. 28). He is of course right that success or failure in high profile cases is likely to be an
important aspect of judicial independence, but not a very good measure of day-to-day independence in routine cases
where the routine of delay and corruption may be the issues - as Fiss's definition suggests (Fiss's first element,
"party detachment" bears directly on issues of bribery and corruption).
Measuring judicial inefficiency is even more difficult, as Prillaman surely knows. Even absent consideration of
its problematic quality, efficiency assessed by measuring times from filing to disposition requires reliable data,
and those data are least likely to exist in countries where "efficiency" is most problematic. And, as
he rightly notes, the contemporary practice of assuming that the practices associated with inquisitorial systems
based on codified "Roman" law are inefficient and ought to be replaced by adversarial systems with oral
hearings may be fraught with unpleasant outcomes (pp. 23-4).
Of the three measures that Prillaman proposes access may be the easiest to assess, at least at one level of analysis,
that of public opinion polling. If people don't have confidence in courts, they are unlikely to resort to them,
except when there is no choice. There is abundant evidence of the low levels of public confidence in Latin American
courts, and Prillaman rightly relies on such evidence for the subtitle of his book. Indeed in both El Salvador
and Guatemala one pressing present concern is the rising resort to vigilante justice by citizens who have no confidence
in the state criminal process.
Following its conceptual introduction the book then presents case studies, each of the first three, it turns out,
illustrating a serious flaw. The fourth chapter examines the case of post-Pinochet Chile as an example - so far
- of successful reform, comparatively speaking.
The first case, that of El Salvador, is the one most familiar to this reviewer. Prillaman concludes that Salvador's
failure rests in the "dangers of thinking small." In my view Prillaman spends too much time on the reforms
attempted in the early 80s and too little on those that followed 1992 as part of the post-Peace process. The efforts
in the 80s included units designed to provide physical security for judges, a special investigation unit that would
assist in politically sensitive cases, the revision of legal codes and a judicial training program. The obvious
difficulty with this, as Prillaman clearly notes, was that these were to be undertaken while the civil war
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continued, he judges these efforts to be failed. It was not until after the Peace Accords that more fundamental
and pervasive reforms were undertaken, most notably altering the method for selecting judges, the creation and
empowerment of a National Judicial Council and efforts to reduce the powers of the Supreme Court and particularly
of the Chief Justice. Yet despite these efforts, opinion polls continue to reveal exceptionally low levels of
confidence in the justice system as well as the continuing perception of pervasive corruption (see Jackson, Dodson
and O'Shaughnessy 1999).
The case of judicial reform in Brazil is presented as an important example of what can happen when judicial independence
in increased, without taking into account the correlative problem of judicial accountability. While the "goal
of promoting individual and structural independence clearly was successful" the backlog of cases increased
"by a factor of ten in just over a decade," and trial delays became so problematic that there was no
practical access to the judiciary (pp. 75-6). Judicial independence was the product of the constitution of 1988,
but in this instance such independence raises the question of whether judges have "become too independent-whether
the Brazilian judiciary in fact had become an entrenched bureaucratic oligarchy in need of restraint and devoid
of all accountability to other
branches of government and to the public" (p. 85).
The third case study that of Argentina, is presented as a prime example of political interference with the judiciary
under the regimes of both Raul Alfonsin and Carlos Menem. One of the quotes that heads the chapter on Argentina
is that of Carlos Menem who responded to a reporter's question about his plan to double the size of the Argentine
Supreme Court by his own question, "Why should I be the only president in fifty years who hasn't had his own
court?" Just as was the case with Brazil, though for quite different reasons, public trust for the Argentine
judiciary was at a low ebb by 1999, but this only the most recent results of a long-term trend. Prillaman notes
that between 1930 and 1976, the Argentine "Supreme Court had been replaced en masse on seven occasions and
all but one justice on two other
instances" (p. 114). Of course there is more to the story than this, but the details are no less alarming.
The cases of El Salvador, Brazil and Argentina make the chapter on Chile all the more interesting. It no doubt
is more difficult to explain the reasons for success than for obvious failures, so this review cannot do justice
to the complexity that Chile no doubt represents. Suffice it is say that Prillaman is cautiously optimistic about
Chile. If he is right, it is a country worth studying in far more detail than a single chapter can manage.
Chile's prospects for successful reform are all the more interesting for their emergence from the grim reality
of the rule of Pinochet between 1973 and 1990. Perhaps the best thing that can be said about the judiciary under
Pinochet was that they had mostly been marginalized. As Prillaman notes since the courts did not challenge Pinochet,
he mostly was willing to leave them alone. The chapter cites a three-pronged approach to reform since Pinochet.
The first problem was to get rid - or reduce the influence - of judges appointed by the military regime to life
tenure.
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Occasional court packing, it seems, is quite different from persistent court packing. Removals for professional
misconduct and impeachment were part of the mix, as were deaths and retirements. And over time the evidence of
judicial independence accumulated as efforts mounted to hold accountable some of those who had been responsible
for egregious human rights violations. The second prong was to market certain reforms as politically neutral
effort to enhance the efficiency of the justice system, and another step was to allocate fifty-four new judgeships
created in 1993 to the appellate level to deal with a case backlog. The third prong was an "access to justice"
program, chiefly involving provision of judicial and legal services to low-income citizens.
Chile is the only instance that Prillaman reports in which the opinion polls are moving in the right direction:
approval ratings for the courts have been moving steadily upward. His conclusion is that the Chilean "public
accepted slow but steady progress - even setbacks - as long as the overall direction of the reform program was
positive. He applauds Chilean efforts to attack judicial independence, efficiency and access simultaneously but
incrementally.
Prillaman's objective of analyzing these four countries using a common conceptual checklist is a worthy one that
must be judged a tentative success given the limited data that are available, though these countries - especially
Chile - will bear close watching in the future.
REFERENCES:
Dodson, Michael, Donald W. Jackson and Laura Nuzzi O'Shaughnessy. 1997. "Human Rights and the Salvadoran Judiciary:
The Competing Values of
Independence and Accountability." THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS. 1 (4): 50-65.
Fiss, Owen. 1994. "The Right Degree of Independence." In TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE
ROLE OF THE JUDICIARY, ed. Irwin P. Stotzky. Boulder, CO: Westview Press.
Hammergren, Linn. 1998. "Fifteen Years of Judicial Reform in Latin America: Where We Are and Why We Haven't
Made More Progress." Location:
http://darkwing.uoregon.edu/~caaguirre/lawandsociety.htm
Jackson, Donald W., J. Michael Dodson and Laura Nuzzi O'Shaughnessy. 1999. "Protecting Human Rights: The Legitimacy
of Judicial System Reforms in
El Salvador."BULLETIN OF LATIN AMERICAN RESEARCH 18 (4): 403-21.
O'Donnell, Guillermo. 1999. "Horizontal Accountability in New Democracies" in THE SELF-RESTRAINING STATE:
POWER AND ACCOUNTABILITY IN NEW DEMOCRACIES, ed. Andreas Shedler, Larry Diamond and Marc F. Plattner. Boulder,
CO: Lynne Rienner Publishers.
__________ 2000a. "Democracy Law and Comparative Politics." KELLOGG INSTITUTE WORKING PAPER # 274 (April
2000). Notre Dame, IN: The Kellogg Institute, Notre Dame University
__________ 2000b. "Further Thoughts on Horizontal Accountability." Draft prepared for the workshop in
"Political Institutions, Accountability and Democratic Governance in Latin America. Notre Dame, IN: The Kellogg
Institute, Notre Dame University.
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Copyright 2000 by the author, Donald W. Jackson.