judicial independence in latin america and the (conflicting) influence of cultural norms, by roberto...

Electronic copy available at: http://ssrn.com/abstract=2384125

Judicial Independence in Latin America and the (Conflicting) Influence of Cultural Norms

Roberto Laver Network Fellow, Edmond J. Safra Center for Ethics,

Harvard Law School Visiting Scholar

Judicial Reform Consultant, former World Bank Senior Counsel

Edmond J. Safra Working Papers, No. 35 http://www.ethics.harvard.edu/lab

January 23, 2014


EDMOND J. SAFRA RESEARCH LAB, HARVARD UNIVERSITY • JUDICIAL INDEPENDENCE IN LATIN AMERICA AND THE (CONFLICTING) INFLUENCE OF CULTURAL NORMS • LAVER • JANUARY 23, 2014

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About this Working Paper Series: In 2010, Lawrence Lessig launched the Edmond J. Safra Research Lab, a major initiative designed to address fundamental problems of ethics in a way that is of practical benefit to institutions of government and society around the world. As its first undertaking, The Edmond J. Safra Research Lab is tackling the problem of Institutional Corruption. On March 15, 2013, this Working Paper series was created to foster critical resistance and reflection on the subject of Institutional Corruption. http://www.ethics.harvard.edu/lab

Judicial Independence in Latin America and the (Conflicting) Influence of Cultural Norms

by Roberto Laver Edmond J. Safra Research Lab Working Papers, No. 35

Harvard University 124 Mount Auburn Street, Suite 520N, Cambridge, MA 02138

This work is licensed under a Creative Commons Attribution 3.0 Unported License. http://creativecommons.org/licenses/by/3.0/deed.en_US

Edmond J. Safra Working Papers, No. 35



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Abstract

This Working Paper highlights the dimension of informal social norms in

institutional corruption by using Latin American judiciaries, collectively, as a test

case. Judicial independence is central to the integrity and trustworthiness of

judicial institutions worldwide. Billions of dollars in development assistance have

been invested in promoting judicial independence in Latin American and other

developing countries. Despite the institutional reforms sponsored by international

development organizations, judiciaries in Latin America remain dependent on

political and other inappropriate influences. This paper argues that addressing

judicial corruption in Latin America is not just a question of adopting the right

institutions and living “happily ever after.” The paper claims that informal social

norms are key factors underlying institutional corruption in the judicial systems in

Latin America. Further systematic study of such phenomena should be a central

focus of future anti-corruption reform efforts.

This Working Paper is part of a broader writing project on international

development assistance in promoting the rule of law and judicial independence.

Keywords:

Institutional Corruption, Judicial Corruption, World Bank, Trust, Social Norms,

Favoritism, Nepotism, Latin America.


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Introduction

“For my friends, anything; for my enemies, the law.”

–Óscar R. Benavides, President of Peru, 1914-1915 and 1933-1939

President Benavides’s words bring to mind an episode experienced by the

renowned Belgian jurist, Marcel Storme. As Storme writes, he had been teaching

his students that “a judge must suffer from [what he called] a Becket-complex,

referring to Thomas Becket who, following his appointment as Lord Chancellor by

Henry II, informed the latter: ‘I was your friend, now I am your Lord Chancellor.’”

He then continues to say that he told the story to the then-Chairman of the

Supreme Court of Argentina, who was said to be “a notorious friend of President

Menem.” As Storme shares, the Chairman “answered tersely: ‘I have remained

President Menem’s friend.’”1

President Menem’s court (as it was popularly known) was infamous for its

subservient attitude towards the executive branch. Unlike FDR, Menem was able to

pack the court, increasing the ranks from five to nine justices. The high court

ended up having six justices, who were close family friends of, and unconditional

loyalists to, Menem. Tragically, this is not an isolated incident in Argentine, or for

that matter, Latin American history. Few forms of corruption can hurt a country

more than improper political influence in the judiciary.

It is widely recognized and accepted that an independent judiciary is fundamental

to the rule of law. Such independence is not limited to the political branches of

government; it extends to any particular individual or group. Unfortunately, most

people in Latin America—and worldwide—do not enjoy the blessings of the rule of

law. They live in countries where the image of Lady Justice, wearing her blindfold,

is simply that—an image far removed from reality, her blindfold often removed or

not there to begin with. Impartial justice is rare: seldom dispensed without fear or

favor and regardless of money or power. This systemic and pervasive government

intrusion weakens the integrity of the judicial institution and erodes public trust. In

1 Marcel Storme, “Independence of the Judiciary: The European Perspective,” in Shimon Shetreet and Christopher Forsyth, eds., The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Martinus Nijhoff Publishers, 2012), 88.


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its latest Global Corruption Barometer,2 Transparency International finds that

corruption is perceived to be permeating through the foundations of the legal

system in many countries. In fact, the judiciary comes in as the second most

corrupt institution after the police. In Latin America, the judiciary stands as one of

the most corrupt institutions in a majority of the countries surveyed. Indeed, six

out of eleven countries score the judiciary over 4 (on a score scale of 1-5 where 1

means not at all corrupt and 5 means extremely corrupt), and three other countries

score the judiciary just below 4.

Promoting the rule of law and independent judiciaries is high on today’s

international development agenda. A widespread consensus exists among

international development organizations, development practitioners, and scholars

that an effective judiciary is key to a country’s political, economic and social

development.3 A well-functioning judicial institution is required to stimulate

investment, both domestically and from abroad.4 Private investors seek a judiciary

that respects and protects property and contractual rights, and treats related

disputes without capriciousness or influence from outside forces.5 For a country’s

citizens, fair and impartial judges are needed to protect important civil and

2 Transparency International, “Global Corruption Barometer 2013,” http://www.transparency.org/gcb2013. The 2013 Global Barometer, which surveyed 114,000 people and analyzes corruption in 107 countries, finds that corruption is prevalent across both developed and underdeveloped nations: More than 50 percent of respondents in the world said corruption had worsened in the last two years. This is not only about individual corruption and bribes. The report also evaluates other systemic forms of corruption that occur when decisions to allocate public resources are distorted by money, power, access, connections or some combination of the above. Almost two-thirds of the respondents thought that personal contacts were important to get things done in the public sector. And 54 percent of people think that the government is either largely or entirely captured by self-interested groups, rather than being run for the benefit of the public at large. In some countries (i.e. Cyprus, Greece, Lebanon, Russia, Tanzania and Ukraine), more than 80 per cent of people believe the government is either largely or entirely run by a few big entities acting in their own self-interest. 3 For a survey of this scholarship, see Richard Messick, “Judicial Reform and Economic Development: A Survey of the Issues,” World Bank Research Observer 14.1 (1999): 120-123. On the specific relationship between judicial independence and economic growth, see Lars P. Feld and Stefan Voigt, "Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators,” European Journal of Political Economy 19.3 (2003): 497-527 and Lars P. Feld and Stefan Voigt, “Unbundling Judicial Independence,” June 20, 2007, http://www.isnie.org/assets/files/papers2007/voigt.pdf (accessed on November 30, 2013). For skeptical views on the evidence, see Thomas Carothers, ed., Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace, 2006).

4 Messick, “Judicial Reform and Economic Development.” For additional World Bank sources on the relationship between functioning judicial institutions and economic and social development, see Ana Palacio, “Legal Empowerment of the Poor: An Action Agenda for the World Bank,” World Bank Working Paper No. 48701 (2006); World Bank, Economic Growth in the 1990s: Learning from a Decade of Reform (World Bank, 2005); World Bank, World Development Report 2002: Building Institutions for Markets (World Bank, 2001); World Bank, World Development Report 1996: From Plan to Market (World Bank, 1996). 5 Ibrahim F. I. Shihata, The World Bank in a Changing World, Volume 2 (M. Nijhoff Publishers, 1995) 149-150.


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political rights. Judiciaries that are institutionally weak, subject to corruption, and

heavily politicized cannot fulfill these vital roles.6

While an effective judicial institution is important in the developed world, it is

perhaps even more critical in countries, such as those in Latin America, where

democracy is fresh and the need to institutionalize the rule of law is essential for

development. In the past three decades, many developing countries have made the

transition from authoritarian rule to a democratic form of governance. In many

such transitions, “victims of human rights abuses . . . have demanded that [their

offenders] be brought to justice.”7 These shifts to democracy brought with them a

need for a judiciary that can effectively establish confidence in government

institutions and practices, and governments have also quickly realized that their

social and economic development is inextricably linked to an effective judicial

institution that can impartially resolve commercial disputes.8

To varying degrees, judiciaries in developing countries remain unprepared to

respond to these challenges. Judicial institutions are affected by a myriad of

problems including inefficient procedures, excessive court fees, inaccessible

courthouses, biased and poorly trained judges, and cumbersome procedural

requirements. Often, they are heavily influenced by (or under the direct control of)

the executive or legislative branch, thus making it very improbable that a private

6 The World Bank produces empirical evidence showing the relationship between a sound justice sector and development. This includes cross-country data sets that demonstrate a correlation between deficiencies in the rule of law and negative economic and social development. See World Bank International Development Association, “IDA Resource Allocation Index (IRAI),” 2011, http://go.worldbank.org/S2THWI1X60. The “Doing Business” Reports—a publication of the International Finance Corporation (IFC)—provide a quantitative measure for comparing business regulations in ten indicator sets across 181 countries. “Doing Business” has found that streamlined court processes and faster contract enforcement are associated with a better environment for business. See, e.g., World Bank, Doing Business in 2004: Understanding Regulations (World Bank, 2003), 41-42. The Business Environment and Enterprise Performance Survey (BEEPS)—developed jointly by the World Bank and the European Bank for Reconstruction and Development—comprises surveys of over 4,000 firms in 22 transition countries in the Eastern European and Central Asia Region. The findings of these surveys indicate that firms identify critical obstacles to their effective functioning, such as crime, complex regulations, and judicial performance, among others. See World Bank, “Business Environment and Enterprise Performance Survey,” http://data.worldbank.org/data-catalog/BEEPS. 7 See, e.g., Lawyers Committee for Human Rights and the Venezuelan Program for Human Rights Education and Action, Halfway to Reform: The World Bank and the Venezuelan Justice System (Human Rights First, 1996), 18. 8 Id.


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litigant will receive a fair trial against the government.9 This kind of “dependence

corruption” limits the effectiveness of the judiciary and undermines public trust.10

In an effort to deal with these challenges, Latin American countries (as well as

other countries) have taken steps to reform their respective judicial institutions.

These judicial reform projects have received significant financial and technical

support from international development institutions, amounting to billions of

dollars since the 1980s. These programs run the gamut from comprehensive and

ambitious overhauls of a judicial system to more narrow and discrete interventions

in judicial administration. The World Bank (hereinafter, the Bank),11 for its part,

has provided over a billion dollars in judicial reform programs worldwide.12 It has

engaged in judicial reform operations since the early 1990s as a result of the

gradual expansion of its mandate and its then-emerging governance agenda.13

Judicial reform and anti-corruption measures are also elements of foreign aid

conditionality, as in certain IMF operations, or accession criteria for membership in

the European Union.

This working paper focuses on judicial corruption in Latin America, particularly the

pervasive and improper political influence in the judicial institution. Over the last

two to three decades, Latin American governments, with assistance from

9 Id. and Shihata, The World Bank in a Changing World, 151. 10 Lawyers Committee for Human Rights and the Venezuelan Program for Human Rights Education and Action, Halfway to Reform, 19-20. 11 “The World Bank is composed of two unique development institutions, the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA). The IBRD focuses on middle-income countries and creditworthy poor countries while the IDA focuses on the poorest countries in the world. IBRD provides low-interest loans and IDA provides interest-free credits and grants to developing countries.” World Bank, “Initiatives in Justice Reform 2009,” 1 n.5, http://documents.worldbank.org/curated/en/2009/01/11102800/initiatives-justice-reform-2009. 12 See Roberto Laver, “The World Bank and Judicial Reform: Overcoming ‘Blind Spots’ in the Approach to Judicial Independence,” Duke Journal of Comparative & International Law 22.2 (2012): 183-238. 13 Initially, the World Bank adopted a narrow interpretation of development as exclusively economic growth. Correspondingly, “economic considerations” encompassed “only those issues that were directly relevant to the financial and technical feasibility of the projects it was funding and to the project’s impact on the economic growth potential of the Member State.” Daniel D. Bradlow, “The World Bank, the IMF and Human Rights,” Transnational Law & Contemporary Problems 6.1 (1996): 47-90, 55 (citing United Nations, Statements of U.N. Legal Counsel and IBRD General Counsel on Relations of U.N. and IBRD and Effect of U.N. Resolutions, 6 I.L.M. 150 [1967]). However, as notions of development have evolved and international political circumstances have changed, the World Bank’s interpretation of its mandate has expanded. Beginning in the 1960s, its scope widened to a broader focus on poverty alleviation and sustainable development, including new areas of lending such as rural development, human resources development (e.g., health, education), the environment, and structural reforms. See Paul Mosley, Jane Harrigan and John Toye, Aid and Power: The World Bank and Policy Based Lending, Volume 1 (Routledge 1991), 21-23. For an analysis of the World Bank’s rule of law programs, see Gordon Barron, “The World Bank & Rule of Law Reforms,” Development Studies Institute Working Paper (2005).


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multilateral and bilateral donors, have implemented reforms to “de-politicize” the

judiciary. Section I describes and evaluates these reforms and remedies sponsored

by donors, particularly the World Bank, to strengthen judicial independence in

Latin America. Section II makes a preliminary case that low levels of judicial

independence in Latin America are largely driven by informal factors of low social

trust and dysfunctional cultural norms, which factors are largely understudied and

marginalized in the anti-corruption field. Section III offers some final thoughts.

Reforms to Promote Judicial Independence in Latin America

Judicial independence is a fundamental constitutional norm around the world and

is central to the core mission and integrity of the judicial institution.14 Simply put,

judges, in the performance of their duties, should be solely subject to the force of

the law, and free of improper interference and pressures. As Lawrence Lessig

asserts, independence of the judiciary means “proper dependence,” that is “a

judiciary dependent upon the law and not upon the president, politics or whatever

else you think might taint the judiciary.”15 The decisions of judges should be

enforced truthfully and in full, regardless of their impact on government or other

powerful interests.

In Latin America, judicial independence in practice is very limited. Indeed, there is

a substantial deviation in the actual functioning of the judicial institution from its

official and stated mission—the well-known gap between de jure and de facto

judicial independence. Judicial independence has been impeded by the undue and

pervasive influence of actors from the executive or legislative branches of

government. Governments regularly interfere in the administration of judicial

appointments and judicial processes. This systematic and inappropriate influence

on the impartiality of the judicial process weakens the integrity of the institution

and erodes public confidence. As we will discuss later, this widespread tendency to

14 Adam M. Dodek and Lorne Sossin, eds., Judicial Independence in Context (Irwin Law, 2010), 298 (referring to numerous sources) and Shetreet, The Culture of Judicial Independence, 1. 15 Lawrence Lessig, Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It (Twelve, 2011), 130-131.


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“distract” judges from their proper application of the law is not limited to

politicians.

Judicial independence has been, and remains, a key objective in international

donor’s efforts to promote the rule of law in Latin America. At an early stage, the

World Bank, like other bilateral and multilateral donors, identified judicial

independence as an imperative feature in judicial reform projects,16 and reaffirmed

this centrality in its 2003 strategic framework on judicial reform.17 In fact, the first

pillar of the World Bank’s legal and judicial reform strategy is judicial

independence.18 As the Bank affirmed, “first and foremost, the judiciary must be

independent, impartial, and effective.”19 The rule of law, as expressed by the Bank

“is built on the cornerstone of an independent, efficient, and effective judicial

system.”20 Further, judicial independence is identified as an “imperative feature of

any judicial reform project”21 and “efforts to promote judicial independence are . . .

at the heart of insuring judicial reform.”22 In their operations, the World Bank, like

other bilateral and multilateral donors, has sponsored a wide array of remedies to

reduce improper political influence in the judicial process. As with other forms of

corruption, the World Bank addresses the problem of judicial corruption mainly

through reforms in the institutional and incentive frameworks of the respective

recipient countries.23 These reforms include a menu of so-called supply- and

16 Ibrahim F.I. Shihata, “Legal Framework for Development: The World Bank’s Role in Legal and Judicial Reform,” in Malcolm Rowat, Waleed H. Malik, and Maria Dakolias, eds., Judicial Reform in Latin America and the Caribbean, Proceedings of a World Bank Conference (World Bank, 1995) (the core function of the judicial system encompasses three principal elements: (1) a well-functioning judiciary in which judges apply the law in a fair, even and predictable manner without undue delays or unaffordable costs; (2) rules interpreted and applied according to established procedures; and (3) an independent body to resolve disputes). 17 World Bank, “Legal and Judicial Reform: Strategic Directions,” World Bank Working Paper (2003), http://documents.worldbank.org/curated/en/2003/01/2629017/legal-judicial-reform-strategic-directions. 18 Id., 3. 19 Id., 2. 20 Id. 21 Lawyers Committee for Human Rights, “Building on Quicksand: The Collapse of the World Bank’s Judicial Reform Project in Peru,” 2000, 3. 22 Maria Dakolias, “A Strategy for Judicial Reform: The Experience in Latin America,” Virginia Journal of International Law 36.1 (1995): 167-232, 172. 23 The term “institution” is used here not in the broader sense of the institutional economics writings, but in the narrower sense of “organization,” as commonly used in literature on judicial independence and judicial reform programs. For specific definitions of these terms, see Shahid Javed Burki and Guillermo E. Perry, Beyond the Washington Consensus: Institutions Matter (World Bank, 1998), 2 (“Institutions are rules that shape the behavior of organizations and individuals in a society. They can be formal (constitutions, laws, regulations, contracts, internal procedures of specific organizations) or informal (values and norms). In contrast, organizations are sets of actors who collectively pursue common objectives.”) Informal rules include: “trust or


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demand-side remedies.24 The supply-side remedies focus on the structure and

functions of government. They primarily consist of changes in rules (including

constitutional norms), institutions and procedures concerning the manner of

judicial appointments, security of tenure, financial security of judges, and judicial

control over court administration, budget, and discipline. Beyond these structural

measures, donors sponsor interventions to support what is termed as “operational

independence”; that is, the capacity of the judiciary to manage and administer its

own resources. These are the operational tools that judges require, such as

education, safety, reasonable working conditions and salaries, legal information,

and effective court and case management procedures.25 On the demand side,

donors support increased participation of civil society, through transparency and

accountability measures, to enhance public oversight of the judiciary. These

remedies deal mainly with institutional tools and safeguards for increased

engagement of NGOs, media, and the general public.26

Peru offers a good example of the World Bank’s approach to judicial independence.

In the early 1990s, it was widely recognized that the Peruvian judicial system

lacked integrity and public trust. This was largely based on the perception that the

judiciary was highly politicized. Donors recognized that there was a tradition of

political interference in Peru, not unlike many other countries in Latin America. In

response to this institutional corruption, the government undertook several

the tendency to cooperate among individuals who encounter each other infrequently,” ethics or values and political norms. Id., 12. 24 Mary Noel Pepys, “Justice System,” in Bertram Irwin Spector, ed., Fighting Corruption in Developing Countries: Strategies and Analysis (Kumarian Press, 2005) (noting four broad areas of judicial reform: limiting authority; reducing discretion; increasing transparency and accountability; and improving working terms and conditions) and Mary Noel Pepys, “Corruption within the Judiciary: Causes and Remedies,” in Transparency International, Global Corruption Report 2007: Corruption in Judicial Systems (Cambridge University Press, 2007): 4-5 (noting three broad categories of remedies: enhancing the independence of the judiciary; introducing accountability mechanisms; and enhancing the competency of external controls). Common to these judicial reform programs, especially in Latin America, are judicial councils formed as independent and participatory mechanisms for the selection and appointment of judges. See Nuno Garoupa and Tom Ginsburg, “Guarding the Guardians: Judicial Councils and Judicial Independence,” American Journal of Comparative Law 57.1 (2009): 103-134 (“the World Bank and other multilateral donor agencies have made judicial councils part of the standard package of institutions associated with judicial reform and rule-of-law programming.”). Often these new institutions include a diverse membership representing not only various branches of government but also constituent groups of civil society. Bar associations, universities and other professional associations are among these civil society representatives. On paper, these councils seemed like a great improvement. In practice, however, they have been disappointing. Patterns of inappropriate influence, cronyism and partiality have endured. These upgraded institutional attributes have proved insufficient to overcome the deeper cultural norms of excessive particularism and favoritism. 25 See Laver, “World Bank and Judicial Reform,” 183. 26 Id.


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structural reforms. Of most significance, Peru (like many other Latin American

countries) moved from a political appointment procedure of judges to an allegedly

more independent and pluralist mechanism governed by independent bodies called

“judicial councils.” Through constitutional enactment, Peru established its own

judicial council, the Consejo Nacional de la Magistratura (hereinafter, the Consejo).

The purpose of creating the Consejo was to depoliticize the Judiciary and move

towards a merit-based system for judicial recruitment and removal, through a body

free of executive or legislative branch representation. The Consejo was created with

the power to select, appoint and remove judges and prosecutors. Rules were

enacted for the open and merit-based selection process of judges and prosecutors

with opportunity for public participation. Members of the Consejo include

representatives of the judiciary and civil society organizations such as the bar

association, public universities, private universities and other professional

associations. Beyond these structural measures, other remedies included higher

judicial salaries, performance evaluations of judges and prosecutors, and greater

transparency of court operations.

The above structural and operational reforms, implemented in Peru and in other

Latin American countries, have largely failed to deliver more independent and

impartial justice. After two to three decades of reforms, the impact of judicial

reform efforts is disappointing, to say the least.27 There is a lot of “reform” without

27 For example, see Katya Salazar and Jacqueline de Gramont, “Civil Society’s Role in Combating Judicial Corruption in Central America,” in Transparency International, Global Corruption Report 2007, 117 (“In spite of these reforms, there is widespread recognition that the objectives of independence, transparency and efficiency have not fully materialized”); Keith Henderson, “Global Lessons and Best Practices: Fighting Corruption and Promoting the Rule of Law through Transparency, Openness and Judicial Independence,” International Foundation for Electoral Systems White Paper (2005), http://www.ifes.org/Content/Publications/White-Papers/2006/Global-Lessons-and-Best-Practices-Fighting-Corruption-and-Promoting-the-Rule-of-Law-Through-Transp.aspx (“While it is true that many countries are struggling with how to create or nurture an independent judiciary within different socio-economic contexts, the reality is that most have not succeeded because of a lack of both political leadership and broad-based public support—and not because judicial independence is conceptually too abstract to define or too complex to structurally implement.”); Maria González de Asis, “Anticorruption Reform in Rule of Law Programs,” World Bank (2006), http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/AnticorruptionReforminRuleofLawProgramsFinalVersion.pdf (noting data showing that judicial corruption has not decreased and that judicial independence standards have deteriorated, and adding that “an overall examination of judicial reform over the last twenty to thirty years does not show impressive results”); Margaret Popkin, “Esfuerzos por Aumentar la Independencia e Impacialidad judicial en América Latina,” http://www.sistemasjudiciales.org/content/jud/archivos/notaarchivo/673.pdf (noting unsatisfactory results of reforms focused on systems of selection, appointment, discipline, promotion and evaluation of judges); Linn Hammergren, “Fighting Judicial Corruption: A Comparative Perspective from Latin America,” in Transparency International, Global Corruption Report 2007, 139-140 (noting some positive impact of reforms in some Latin American countries, but recognizing that public opinion polls in the region show a decline of public confidence in judiciary since 1996, at 140, and “the introduction of judicial councils has not been an


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true reform. The institution-focused reforms are inadequate to achieve de facto

independence on the bench. Such donor-supported programs are not yielding more

independent judiciaries. While the program interventions are not devoid of merit,

they are not enhancing, in any significant manner, the confidence of the public that

judicial decisions are made in a fair and impartial manner. The research shows

that institutional remedies are not sufficient to achieve judicial independence.

Indeed, several studies show little, if any, correlation between formal and actual

judicial independence in developing countries, including those in Latin America.28

As these studies note, the relationship between de jure and de facto is “tenuous at

best.”29 Scholars assert, “We find little evidence of a direct and strong relationship

between (a) the formal, typically constitutional rules that scholars claim promote

independent judging and (b) independent judicial behavior. Put simply, indicators

of de jure and de facto independence are at best weakly correlated—in some cases,

they are negatively related.”30 This gloomy picture has led Transparency

International to admit that “despite several decades of reform efforts and

international instruments protecting judicial independence, judges and court

personnel around the world continue to face pressure to rule in favour of powerful

absolute disaster, but the few successes (El Salvador) are outweighed by the clear failures (to which Bolivia and Ecuador can be added) and several examples (Peru, Colombia) that have had ambiguous results” at 144); and Peter DeSchazo and Juan Enrique Vargas, Judicial Reform in Latin America: An Assessment (Center for Strategic and International Studies, 2006) (noting that only Chile has made substantial progress). Similar views are expressed on the results of rule of law and good governance reform in general. See Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Carnegie Endowment for International Peace 2012); Carothers, Promoting the Rule of Law Abroad; Anja C. Gebel, “Human Nature and Morality in the Anti-Corruption Discourse of Transparency International,” Public Administration and Development 32.1 (2012), 109-128 (citing several sources including statements by the World Bank, United Nations Development Program, and Transparency International); Jakob Svensson, “Eight Questions about Corruption,” Journal of Economic Perspectives 19.3 (2005) 19-42 (noting that traditional approaches to improve governance have produced rather disappointing results); and Sebastian Wolf and Diana Schmidt-Pfister, “Between Corruption, Integration, and Culture: The Politics of International Anti-Corruption” (2011), http://www.nomos-shop.de/_assets/downloads/9783832958466_lese01.pdf. 28 Juan Carlos Donoso, “A Means to an End: Judicial Independence, Corruption and the Rule of Law in Latin America,” Dissertation, Vanderbilt University, 2009 http://etd.library.vanderbilt.edu/available/etd-07152009-154311/unrestricted/donoso.pdf (comparison between two de jure and two de facto measures of judicial independence in Latin American countries); Julio Ríos-Figueroa and Jeffrey K. Staton, “Unpacking the Rule of Law: A Review of Judicial Independence Measures,” CELS 2009 4th Annual Conference on Empirical Legal Studies Paper (2009) (comparison of 13 of the most widely used measures of judicial independence); Feld and Voigt, “Economic Growth and Judicial Independence” (design and comparison of the impact on economic growth, of de jure and de facto measurements in 66 countries). For further research showing that formal rules, by themselves, do not guarantee substantive outputs of judicial independence and impartiality, see Matthew C. Stephenson, “When the Devil Turns . . . The Political Foundations of Independent Judicial Review,” Journal of Legal Studies 32.1 (2003) 59-89, 60 (citing several sources). 29 Ríos-Figueroa and Staton, “Unpacking the Rule of Law,” 22. 30 Julio Ríos-Figueroa and Jeffrey K. Staton, “An Evaluation of Cross-National Measures of Judicial Independence,” Journal of Law, Economics and Organization, published online October 24, 2012, 2, http://jleo.oxfordjournals.org/content/early/2012/10/23/jleo.ews029.abstract.


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political or economic entities, rather than according to the law.”31 In Peru, trust in

the judiciary is worse today than two decades ago. In fact, the judiciary is perceived

as the most corrupt institution in Peru. The underlying patterns of patronage and

cronyism have tended to endure.

There is an over-emphasis on institutional and structural responses in anti-

corruption discourse and reform. Clearly there are factors, other than institutional

design and incentives, which are influencing the lack of independent judicial

behavior. Despite structural and operational changes, politicians are, in many

societies, willing and able to trample on judicial independence. The most visible

and notorious instances of breaches of judicial independence are generally those

emanating from partisan politics. While issues of distribution of power and checks

and balances are of paramount importance, informal norms are arguably a key

factor, yet one that is marginalized in the literature and under studied. Generally,

politicians quash judicial independence in contexts where there is a high level of

social tolerance for disrespect of the rule of law, and weaker public outrage and

opposition to political breaches of judicial independence. Institutional safeguards

and incentives “probably require backing by a political norm, in which other actors,

especially voters, punish an executive who tramples on the judiciary’s formal

protections.”32 The primary focus is on structures and incentives to protect against

political threats to conditions of office such as appointment; removal; disciplinary

action; remunerating, educating and evaluating judges; and control over court

administration. Indeed, “while important, this focus obscures the extent to which

judicial independence must be a recognized and accepted part of the political and

legal culture if it is to be effective.”33 We must realize and address that “the

integrity of the legal culture is the responsibility of all citizens”34 and that “public

pressure can make it easier for executives and legislatures to take steps for the

purpose of undermining judicial authority and this diminishing judicial

independence.”35 Next I turn attention to preliminary observations on informal

31 Mary Noel Pepys, “Corruption within the Judiciary,” xxii-xxiii. 32 Charles M. Cameron, “Judicial Independence: How Can You Tell It When You See It? And, Who Cares?” in Stephen B. Burbank and Barry Friedman, eds., Judicial Independence at the Crossroads: An Interdisciplinary Approach (Sage Publications, 2002), 139. 33 Patricia Hughes, “The Significance of Public Pressure on Judicial Independence”, in Dodek and Sossin, eds., Judicial Independence in Context, 269. 34 Id. 35 Id.


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norms in Latin America that arguably act as significant and systemic determinants

of corrupt judicial outputs.

“Proper Dependence” on the Law and the Influence of Cultural Norms

Public trust in Latin American judiciaries is extremely low, to a great extent

because people experience and/or perceive a judicial institution that is not

independent and impartial. I submit that one strong hypothesis for explaining the

gap between de jure judicial independence and de facto judicial independence is the

influence of pervasive and dysfunctional informal social norms which permeate

Latin American societies, profoundly influencing the radius of trust beyond family

and the circle of friends. Interpersonal trust in Latin America remains at a low level

in spite of decades of political, institutional and economic reforms. As the Latino

Barometer reports, “trust remains one of the Gordian knots for the development of

Latin American societies.”36

Using political power and influence to promote favoritism for personal or political

connections is often perceived as acceptable and legitimate. This dysfunctional

behavior, however, is not limited to the political and economic elite. While leaders

bear much of the responsibility, the problem often cuts across all segments and

sectors in society. While we need to guard against the temptation to stereotype and

oversimplify the behaviors of communities and individuals, there may be a high

degree of complicity among the citizenry. In fact, “doing favors for family and

friends is such an ingrained behavior in many cultures that magistrates do not

often believe it affects their role as impartial arbiters.”37 Such practices are woven

into the fabric of the everyday life of ordinary citizens. Relatives and friends expect

favoritism and partiality from those with authority and influence, whether a political

leader, police officer or teacher. In the absence of social trust, institutions weaken

and citizens are less able to associate with others to demand better governance.

These assertions generally, but not universally, hold true in Latin America, where

36 Latinobarómetro Corp. “Latinobarómetro Report 2010,” available at http://www.latinobarometro.org/lat.jsp. 37 See Pepys, “Justice System,” 18.


15

low levels of trust correspond to high levels of perceived corruption and, globally,

relatively low percentage rankings for rule of law (See Table 1 and Figure 1 below).

Table 1. Trust in Latin America

Country World Values Survey*: % responding that most people can be trusted rather than that you can't be too careful

World Values Survey*: % responding that they trust their family completely

World Values Survey*: % responding that they trust completely people they know personally

Latinobarómetro 1996-2010**: % Responding that Most People Can Be Trusted

Latinobarómetro 2010***: % Trust in institutions of Democracy: Judiciary

Argentina 17.6 90.9 36.7 24 34

Bolivia 18 24

Brazil 9.4 66.7 14.2 10 51

Chile 12.6 82.9 14.7 17 38

Colombia 14.5 84.5 17.2 20 34

Costa Rica 19 46

Cuba - -

Dominican Republic

31 28

Ecuador 17 21

El Salvador 26 22

Guatemala 15.7 - - 18 17

Honduras 22 34

Mexico 15.6 78.1 25.7 26 28

Nicaragua 16 22

Panama 21 34

Paraguay 14 27

Peru 6.3 76.1 10 14 15

Uruguay 28.4 84.9 33 30 58

Venezuela 24 38

* WVS selected countries/samples: Argentina (2006), Brazil (2006), Colombia (2005), Chile (2006), Guatemala (2004), Mexico (2005), Peru (2006), Uruguay (2006) **Latinobarómetro, p. 69. Avg. Latin America: 20%

***Latinobarómetro, Table No. 17: Trust in institutions of democracy, 2010 (%), p. 71. Avg. Latin America: 32%

Ecuador’s former president, Osvaldo Hurtado, vividly illustrates the absence of a

culture of legality in his home country.38 A deep-rooted custom of disregard for the

38 Osvaldo Hurtado, Portrait of a Nation: Culture and Progress in Ecuador (Madison Books, 2010).


16

law exists among Ecuadorians and the “parameters of honesty are minimal.”39

Furthermore,

Personal merits are not recognized and rewarded due to the power and

influence that personal relations have in a stratified and paternalistic

society in which many decisions are based on the exchange of loyalty

and favors. The predomination of personal relations over institutional

ones means that decision makers, above all in the public sector, think

about the person or group who will be benefited from a decision, and not

about its merits, needs and rights, nor about national conveniences.

Friendship, kinship and the relationship between godparents and their

godchildren’s parents, as well as political affinities, union affiliations and

the so-called esprit de corps are examples of ties that weigh more

heavily.40. . . When government officials find themselves with the

opportunity of providing retribution or sanctioning an individual, instead

of bearing in mind the person’s capacity, experience, and responsibility,

what frequently counts is friendship, kinship, and the relationships

between someone and his or her godchildren’s parents, as well as

political affinities, union camaraderie, connections, contacts and

favoritisms . . . personal connections are a guarantee that, when

necessary, one can find an appropriate person with influence.41

Hurtado adds, “Nepotism and favors for ‘buddies’ are commonly present. The

relationship between relatives and friends is so strong that the person who does

not accept the request and does not place them in bureaucratic positions causes

resentment among those affected, to whom it would never occur to think about

whether the person was deserving of the position or not.”42

What Osvaldo Hurtado says about Ecuador applies generally to the rest of Latin

America. Renowned journalist and writer Carlos Alberto Montaner laments that “a

large percentage of Latin Americans either nurture or tolerate relationships in

which personal loyalty is rewarded and merit is substantially ignored. In Latin

39 Id. at 134 40 Id. at 181 41 Id., at 143. 42 Id.


17

American culture loyalty rarely extends beyond the circle of friends and family.

Thus the public sector is profoundly mistrusted and the notion of the common

good is very weak.”43 Montaner further affirms that perceived power in Latin

America resides in the ability to operate above the law.44 Echoing Montaner,

Francis Fukuyama adds,

In many Latin American societies, a narrow radius of trust produces a

two-tier moral system, with good behavior reserved for family and

personal friends, and a decidedly lower standard of behavior in the

public sphere. This serves as a cultural foundation for corruption, which

is often regarded as a legitimate way of looking after one's family. . . .

[In] much of Latin America, social capital resides largely in families and

a rather narrow circle of personal friends. It is difficult for people to trust

those outside of these narrow circles. Strangers fall into a different

category than kin. A lower standard of moral behavior applies when one

becomes, for example, a public official. This provides cultural

reinforcement for corruption: in such societies, one feels entitled to steal

on behalf of one's family.45

The above observations about the Latin America are also a reality in other

countries and regions around the world.46

43 Carlos Alberto Montaner, “Culture and the Behavior of Elites in Latin America,” in Lawrence E. Harrison and Samuel P. Huntington, eds., Culture Matters: How Values Shape Human Progress (Basic Books 2000), 59. 44 Id., 58. 45 Francis Fukuyama, “Social Capital and Civil Society,” Prepared for Delivery at the IMF Conference on Second Generation Reforms, George Mason University, October 1, 1999, http://www.imf.org/external/pubs/ft/seminar/1999/reforms/fukuyama.htm. 46 Outside of Latin America, a Nigerian political leader rhetorically asks, “who gets to . . . a position of power and then refuses to help his people?” See Daniel Jordan Smith, “The Paradoxes of Popular Participation in Corruption in Nigeria”, in Robert I. Rotberg, ed., Corruption, Global Security, and World Order (Brookings Institution Press, 2009), 290. Scholars further elaborate that “the discussion on institutionalization of culture of accountability in Nigeria’s local government administration would not be complete without considering the constraints imposed on the polity. These constraints . . . include the multiple loyalties and primordial instincts in ethnic societies . . . cultural constraints are more dominant at the family clan, village and ethnic group levels. . . . The multiple loyalties in the larger society emphasize the use of particularistic criteria instead of universalistic criteria, thereby resulting in opaqueness and lack of accountability. . . . The successful institutionalization of culture of accountability in Nigeria’s local government has been impossible to some extent due to some of these constraints. This has led to a diminishing trend in accountability at grassroots governance.” Deyemi O. O., Akindele S. T., Aluko O. A. and Agesin B, “Institutionalizing the Culture of Accountability in Local Government Administration in Nigeria,” African Journal of Political Science and International Relations 6.4 (2012): 81-91, 88. Regarding the Philippines, Stephen Golub notes that “Filipino society prizes personal connections to an extraordinary degree,” and that “extreme personalism . . . leads to the graft and corruption evident in Philippine society.” Stephen Golub, “The ‘Other 90 Per Cent’: How NGOs Combat Corruption in Non-Judicial Justice Systems,” in Transparency International, Global Corruption Report


18

In such social contexts, the judiciary is arguably a mirror of society. The judiciary

does not operate in a vacuum; judges are a product of their respective societies.

The capture of the judiciary by political actors is not simply an outgrowth of

dysfunctional political structures but also underlying cultural norms. Corruption in

the judiciary is closely associated with the broader phenomenon of corruption in

state and society. As Transparency International recognizes, “the justice system is

also embedded within society: the reality is that general levels of corruption in

society correlate closely with levels of judicial corruption. This appears to support

the contention that a clean judiciary is central to the anti-corruption fight; but

might also suggest that the quality of the judiciary and the propensity of its

members to use their office for private gain reflect attitudes to corruption in society

more broadly.”47 The environment in turn places limits on what even the most

perfect institutional structure can accomplish, and thus on our ability to deal with

judicial corruption by addressing only the judicial sector.

In these social environments, individual judges operate under cultural constraints

that conflict with a judge’s fidelity to the law. Judicial partiality rather than

independence becomes the social norm and expectation. Indeed, “[judges] find

themselves under pressure not only from substantial groups and institutions, such

as politicians, big business and organized crime, but from the looser, still potent

informal networks formed by extended family, friends, neighbors and other groups

with whom they associate. To a judge working in this setting, the form, extent and

significance of corrupt practices become indistinct because they reflect local

norms of networking, exchanging favours and gifts, and offering and receiving

payoffs to ensure favourable outcomes.”48

2007, 131. The author further adds that “A World Bank study finds only 5 per cent of Filipinos believe that ‘most people can be trusted’, a phenomenon that reinforces reliance on special favours. This favouritism in turn creates utang na loob (‘debt of gratitude’) that imposes reciprocal, sometimes corrupting, obligations. To complicate matters further, corruption in the Philippines does not just involve reaping material and personal benefits. Those who fail to honour the interests of powerbrokers can face social ostracism, economic harm or professional damage. For government personnel, this includes transfers to bureaucratic backwaters or unappealing parts of the country. The upshot is that governance is not a set of neutral institutions, but rather a web of personal and financial connections. This blocks law reform, law enforcement and the poorly connected majority’s access to justice.” Id. 47 Transparency International, Global Corruption Report 2007, xx. 48 Marina Kurkchiyan, “Judicial Corruption in the Context of Legal Culture,” in Transparency International, Global Corruption Report 2007, 103.


19

As another expert puts it, “doing favors for family and friends is such an ingrained

behavior in many cultures that magistrates do not often believe it affects their role

as impartial arbiters. Rather than reveal the conflict of interest and seek

disqualification, magistrates often submit to the pressure without compunction.”49

Personal relationships and influence trump merit and impartiality, and even the

judges’ conception of what is dishonorable. “It may be more dishonourable for a

judge to ignore the wishes of a family member than to abide strictly by the law. . . .

The strength of personal relationships is so great in some countries that all judicial

decisions are suspected of being a product of influence.”50

These harmful cultural practices are clearly evidenced in Gabriel Ferreyra Orozco’s

exemplary and empirical study on judicial corruption in a state in central Mexico.51

Semi-structured interviews were conducted with 32 individuals, mainly magistrados

(magistrates or justices), jueces (judges), and empleados (staff members). Some

interviewees defined corruption as a cultural phenomenon: es una mala costumbre

que tienen los mexicanos (it is a bad habit of Mexican people). The study shows that

corruption in the Mexican judiciary means much more than just bribery; there is

also the “other corruption,” to use Ferreyra Orozco’s phrase, which includes

influence peddling, favors, cronyism, and nepotism. 78 percent of those surveyed

strongly agreed that the aforementioned phenomena occur on a daily basis.

Corruption through connections (to obtain positions and tenures) has a long history

in Mexican society. According to interviewees, the “other kind” of corruption

(through connections) often sways the outcome of trials to favor one of the parties.

My own experience as a Latin American attorney supports this finding. Due to

friendship, political pressure, cronyism, favors, kinship, or personal interest, a

person in charge of a decision-making process (mostly judges and magistrates, but

also some staff members such as court secretaries) can influence a verdict directly

or misrepresent the evidence to affect the result of a trial. The study notes that

favoritism and undue influence are commonly used in two areas: (1) as leverage to

obtain tenures and positions due to a poor civil service, and (2) to influence the

proceedings and verdict of a particular trial. Furthermore, the study finds that

these practices are “commonplace in the daily life of the judicial system because

49 Pepys, “Justice System,” 18. 50 Pepys, “Corruption within the Judiciary,” 4. 51 The study uses fictitious names for the actual locations.


20

they are not considered a deviant practice; the abnormal became the normal.”52

These cultural norms further erode social trust, a key determinant of judicial

independence.53

Figure 1: Trust and Corruption in Latin America

Final Thoughts

As discussed in this paper, reforms dealing with judicial corruption in Latin

America (and arguably other places) have primarily focused on the implementation

of new appointment structures and external accountability mechanisms. Overall,

these reforms have largely failed to deliver the desired outcomes and improve the

integrity of the judiciary and its trustworthiness. The gap between judicial

independence rule and behavior persists in Latin America despite institutional and

incentive-based reform efforts sponsored by international development

52 Gabriel Ferreyra-Orozco, “Understanding Corruption in a State Supreme Court in Central Mexico: An Ethnographic Approach,” Human Organization 69.3 (2010): 242-251. 53 See Bernd Hayo and Stefan Voigt, “Explaining De Facto Judicial Independence,” International Review of Law and Economics 27.3 (2007): 269-290.


21

organizations. Latin America shows that it is not just a question of adopting the

right institutions and incentives and living “happily ever after.”

This paper has argued that judicial independence depends on supportive cultural

norms which are largely absent in Latin America. Cooperative norms of honesty

and reciprocity are not widely held in the region. Particularistic personal

relationships are widespread, and they strongly influence how rules are applied, or

not applied, in all areas of human interaction. These particularistic norms help

explain the systematic and widespread problem of a lack of “proper dependence”

on the law. Of course, these harmful social practices are not exclusive to Latin

America or, for that sake, to any particular group of countries or communities.

They are found here, there, and everywhere. Rather, I would argue, it is more a

question of degree—in the scope, frequency and intensity with which they occur

and the level of social tolerance of and complicity with such practices. In such

social environments, the challenge is not in dealing with a few “bad apples” (such

as corrupt politicians or judges), but rather a “rotten barrel” of dysfunctional social

practices.

Anti-corruption study and reform needs to focus more on these, largely under-

studied and marginalized, socio-cultural drivers of systemic judicial corruption in

Latin America. The empirical basis of the insights and claims articulated in this

paper would benefit from more systematic studies, similar to the one performed by

Gabriel Ferreyra Orozco in central Mexico and discussed in this paper. Such

studies might draw more nuanced distinctions, such as examining the potentially

different effects of harmful social norms on lower-level and higher-level courts, or

contrasting the differences between internal versus external types of judicial

dependencies. Another possible means of strengthening the empirical basis of the

main premise of this paper is by resort to the comparative perspective—namely, by

further delving into the effects of the informal norms, facilitating nepotism and pro-

family biases, on other social institutions (such as the school system, hospitals and

the medical systems, the local governance realm, etc.).

Latin America arguably shows a deficit in its civic capital. Judges, and those

interacting with them, are generally more sensitive to political and personal

relationships and loyalties than to the merits of the law, in spite of the institutional

safeguards and incentives protecting judicial independence and impartiality. As

Transparency International recognizes, socio-cultural factors are a fundamental


22

element of a country’s system of integrity, including the institution of the judiciary.

An effective judiciary, like other institutions in a country’s integrity system,

depends upon supportive societal values and norms such as social trust and

personal integrity.54 As we move forward, the next phase of reforms must prioritize

efforts to better understand the interaction between these socio-cultural factors

and judicial independence, and to promote alternative strategies and remedies

(educational, religious and others) to build the software, not only the hardware, of

the rule of law and judicial integrity in Latin America.

Acknowledgments

With gratitude to the following: Rebecca Wolozin, Talia Fisher, Mark Somos, Heidi

Carrell and Emily Bromley.

54Transparency International, “National Integrity System,” http://www.transparency.org/files/content/nis/NISIndicatorsFoundations_EN.pdf.


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With Special Thanks to our Working Paper Series Board Members:

Advisory Board Editorial Board

Marcia Angell Lisa Cosgrove Arthur Applbaum Oguzhan Dincer Marguerite Avery William English Mahzarin Banaji Gregg Fields Max Bazerman Paul Jorgensen Archon Fung Aaron Kesselheim David Korn Genevieve Pham-Kanter Nancy Rosenblum Marc Rodwin Malcolm Salter Susannah Rose Dennis Thompson

judicial independence in latin america and the (conflicting) influence of cultural norms, by roberto...

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