Latin America

General Theory and Issues

Prillaman

Toward a Theory of Judicial Reform in Latin America

Three Components of a Healthy Judiciary

Judiciary approaches concept of “quality justice” when it simultaneously demonstrates independence, efficiency and access.

Each linked to judiciary’s ability to ensure the democratic regime, foster economic development and build popular faith in the rule of law

Efficiency

What elements?

Data from Justice Delayed

Jarquin and Carrillo

Efficiency of the Criminal Justice System Percent of inmate population accused or

convicted Argentina 82% Chile 49% Colombia 56% El Salvador 80% Panama 90% Paraguay 92% Uruguay 80% Venezuela 66%

Duration of Civil Proceedings

Average regular civil proceedings Argentina more than 2 years Chile 2 years, months Colombia 2 years, 9 months Costa Rica 10 months, 1 week Paraguay more than 2 years Peru 4 years, 6 months Uruguay 8 months

Backlog of cases

Percentage of cases postponed Argentina 94% Bolivia 50% Chile 5.7% Colombia 37% Ecuador 42% Peru 59%

Resources Allocated to Justice Systems Percent of budget allocated to justice

Costa Rica 5.5% (closer to 1.5%) Colombia 4.6% El Salvador 4.5% Bolivia 3% Ecuador 2.5% Uruguay 1.5% Paraguay 1.5% Argentina 1.4% Honduras 1.0% Chile .75% Panama .50%

Other countries I found data on: Philippines: slightly over 1% Pakistan: .2% Romania: 1.7% Most Anglophone African countries: less than 1%

Number of Judges per 100,000 population Colombia 17.1 Uruguay 15.5 Argentina 11.0 Costa Rica 11.0 El Salvador 9.0 Bolivia 8.0 Nicaragua 7.8 Ecuador 4.7 Chile 3.8 Guatemala 3.0 Spain 3.0 United States 2.0 Netherlands 2.0

Underfunded, ill-equipped, poorly organized, and lacking modern record-systems

Spend inordinate amount of their time on administrative tasks: 70% in Argentina, 65% in Brazil, and 69% in Peru…

Access

What does this entail?

Percentage of public viewing the judiciary as inaccessible to the average citizen 47% in Ecuador 67% in Venezuela

66% in Peru said they wouldn’t seek redress through courts if they were victims of crime

Geographic distance also a problem

EX: Peasants in most parts of Peru would need to travel an average of 52.3 kilometers to reach a court to solve a legal dispute

Public Support Link

Rule of law

Requires some institution to protect it while also itself adhering to it (the rule of law)….

Given the vulnerability/weakness of the courts as institutions, courts need public support to function adequately.

Therefore in order that the rule of law remain, operative citizens need to trust the institution charged with its keeping.

INDEPENDENCE: For Prillaman Key Issue

A healthy judiciary requires a balance between independence and accountability.

FEARS: INSULARITY

Owen Fiss It is simply not true that the more insularity the

better, for a judiciary that is insulated from the popularly controlled institutions of government has the power to interfere with the actions or decisions of those institutions, and thus has the power to frustrate the will of the people…We are thereby confronted with a dilemma. Independence is assumed to be one of the cardinal virtues of the judiciary, but it must be acknowledged that too much independence may be a bad thing. We want to insulate the judiciary from the more popularly controlled institutions but should recognize at the same time that some elements of political control should remain.

AN ADDITIONAL issue beyond Prillaman

General consensus: throughout Latin America judiciaries have greater degree of EXTERNAL independence (especially from executive and military) BUT less INTERNAL INDEPENDENCE!

1970s and 1980s: Two DecadesDictatorships and Repression

Truth Commissions Concluded

The judiciary failed to protect citizenry from arbitrary detentions, torture, and official killings

Truth (and Reconciliation) Commissions

How do you reckon with massive state crimes and abuses?

Argentina’s “Dirty War”

1976-1983

15,000 people disappeared and unaccounted for or known to have been killed

Systematic and CENTRALLY planned state terror

340 concentration camps identified

Chile

Up to 50,000 tortured Almost 4,000 deaths Over 1200 deaths in first week after the

coup Reports of 8,000 disappeared

El Salvador

1.4% of the population killed Truth Commission

Testimony on over 7,000 cases of deaths, disappearances, torture, rape, and massacres

Guatemala

30 years: over 200,000 deaths and disappearancesIn 1980s entire villages razed and tens of thousands massacred

Goals?

Peace Reconciliation Justice Truth Reparations Healing Reform of institutions Rebuilding trust in government, police, armed forces Prevention

CONFLICT AMONG THE GOALS?

HAYNER: The first and most prominent of demands is justice

What inherently makes achieving justice so difficult?

Hayner defines/distinguishes truth commissions

FOUR CHARACTERISTICS:1. focus on the PAST

2. investigate a pattern of abuse over a period of time, rather than a specific event

3. temporary bodies that complete with work with published report

4. officially sanctioned and authorized by the state

The Courts

Why might the courts be a less than satisfactory venue to achieve these goals?What advantage might TRCs have?

Hayner Five Aims of Truth Commissions

1) To discover, clarify, and formally acknowledge past abuses

“The past is an argument and the function of truth commissions, like the function of honest historians, is simply to purify the arguments, to narrow the range of permissible lies” Michael Ignatieff

“Knowledge that is officially sanctioned, and thereby made a ‘part of the public cognitive scene’…acquires a mysterious quality that is not there when it is merely the ‘truth.’ Official acknowledgement at least begins to heal the wounds.” Juan Mendez

2) To respond to the specific needs of the victim

3) Contribute to justice and accountability

Problems and difficulties

The question of naming the guilty

4) Outlining institutional responsibility and recommending reforms

5) Promote reconciliation and reduce tension from past violence

Tension between this goal and others.

Examine Truth Commission findings along with Prillaman’s findings and arguments about judicial reform for our Latin American countries.

Judicial Protection of Human Rights in Latin America

Heroism and Pragmatism

(Brian Turner)

Defense of human rights from the bench not a simple matter

Justices are representatives of the law and of an institution of the state…

Do not have the luxury of moral puritanism

Hold positions of authority but their power to influence events is rather weak

The Concept of Judicial Heroism

Southern Cone since 1964 (Argentina, Brazil, Chile, Paraguay, and Uruguay)

Moral-Formal Dilemma

Natural law or appeals to higher moral code would require defense of human rights

As does international law NOT a part of judicial

tradition Absent/conflict with penal

code

Judicial tradition: straightforward application of statutory law

Socialized to a system based on the supremacy of statutes

Quite a leap to apply radical judicial doctrine outside the traditional sources to counter statutes.

Adapts from Robert Cover’s Study of pre-Civil War judges in US

Leads to dissonance

To reduce dissonance judges resort to three strategies

1. Elevation of the formal stakes

2. Retreat to a mechanical formalism

3. Ascription of responsibility elsewhere

Latin American judicial behavior

Response to military coups

Judges have four choices after a military coup

Resign, capitulate to military power, resist that power, or chart a pragmatic course.

Latin American judicial behavior Response to military coups

Brazilian Supreme Federal Tribunal Successful pragmatism at first but then succumb,

try again and are beat down

Argentina Poder Judicial Purged and capitulate

Uruguayan Supreme Court Pragmatic avoidance and then challenge,

ultimately succumb

Chilean Supreme Court Most complete capitulation

Latin American judicial behavior

Response to democratization—eventual election of civilian governments

Variety of new dilemmas regarding the administration of justice, rule of law and judicial independence

Turner concludes judicial defense of human rights depends upon

The judiciary itself. Must develop traditions that value political

liberty more than formalism and provide creative justices the support necessary for positive defense of rights

Must be willing to support its traditions of judicial independence and judicial review.

Chile

Salvador AllendeElected 9/4/1970

Socialist Parliamentarian

First time in 20th Century a socialist

had been democratically voted into office in the Western Hemisphere

Nixon: “No impression should be permitted in Latin America that they can get away with this, that it’s safe to go this way. All over the world it’s too much the fashion to kick us around. We cannot fail to show our displeasure.” National Security Memorandum of Conversation

The first September 11th

Patricio Aylwin

Becomes president in 1990, in a restricted democracy.

Six weeks after inauguration creates National Commission on Truth and Reconciliation.

"The reign of truth is the foundation of a democratic society, but lies are often the anteroom to violence."

Chile

Unanimously Adopted Report of the Chilean National Commission on Truth and Reconciliation

8 members: 4 supporters of Pinochet and 4 opponents

MANDATE

Investigate “disappearances after arrest, executions, and torture leading to death committed by government agents or people in their service, as well as kidnappings and attempts on the life of persons carried out by private citizens for political reasons.”

Investigated 2920 cases in nine months, with a staff of sixty, with no subpoena power and no support from the military.

Two volume, 1890 page report approved unanimously and released in Feb. 1991 and made public by Aylwin n a speech of behalf of the state.

The Report

VIOLATIONS

Behavior of the Courts toward the Grave Human Rights Violations that Occurred between September 11, 1973 and March 11, 1990

Excerpts from Ch. Four

Suggested Reforms

Chapter Two, Section AA Judicial Branch that Really Plays its Role in Safeguarding the Essential Rights of the Person

Reading QUIZ: Prillaman Chapter Six1. According to Prillaman how was Chile’s

judicial reformation different compared to other reforming Latin American countries?

2. Chose one of three prongs of reform initiated by the reforming Chilean presidents. Describe fully the proposed reform under that prong and then discuss the evidence and conclusion that Prillaman draws in regard to that particular prong of reform. Also, include here a discussion of some of the difficulties or problems the reformers confronted.

Prillaman: Chile

What was different about Chile compared to other reforming Latin American countries?

Simultaneously reformed all three variables with a degree of logic and coherence.

Independence would be of little use if the courts were inefficient and inaccessible to the public and vice versa.

Three Pronged Approach

ONE: Independence and accountability What paradox do we see the reformers face? What attempts are made by the two presidents? What results? Difficulties? USAID current update:

judicial academy Supreme Court selection process Hierarchical system

Three Pronged Approach

TWO: Efficiency What key efforts were made by the two

presidents? What results? Difficulties?

Three Pronged Approach

THREE: Access What key efforts were made by the two

presidents? What results? Difficulties?

USAID assessment

Argentina

Background

Ideology and state terrorHannah Arendt 1951 unprovoked terror’s origin is in the ideological

dispositions of state leaders Construct a “fiction” about the nation’s ills that

the elites and masses alike would readily consume NAZI Germany and the historical necessity of

exterminating the Jews

Licensed broad and continuous attacks against perceived enemies of the state by claiming that the country was embroiled in a state of permanent or total war

NATIONAL SECURITY DOCTRINE in the Southern Cone

David Pion-Berlin and George Lopez 1991 Argentine State Terror

Argentina: The Logic of State Terror and the National Security Doctrine

prerogatives

different kind of war

…no clear battle lines, no large

concentration of arms and men,

no final battle to signal victory”

cockroach, rat, apesto

…..

President Videla: subversive is

anyone who opposes the Argentine way of

life...

End of 1975--guerilla forces

subdued--could only

commit sporadic and futile acts of urban terror

by 1976 JUSTIFIED

STRONG link between national security doctrine and economic ideology

Economic development cannot be achieved without national security

AND security could not be permanent without economic development

Argentina: Targets of State Terror and Economic Ideology

David Pion-Berlin and George Lopez 1991 Argentine State Terror

Strong capitalist values

State intervention dangerous

Unions dangerous

Pres. Videla: calls on regime to carry out “its mission” through “detection and destruction of subversive organizations” particularly in the industrial and educational sectors

DESAPARECIDOS: blue-collar, white-collar workers, teachers, professors, professionals, students, scientists, artists, journalist

UNION members 3 times as likely

Educators highest rate--2 to 4 times as likely as various unions

“A terrorist is not just someone with a gun or bomb, but also someone who spreads ideas that are contrary to Western and Christian civilization…”

Also, an indiscriminate element: housewives, children, random individuals (torture link)

70% of disappeared abducted from the privacy of their homes or where peacefully assembled

Only 25% arrested on the street

Truth Commission

National Commission on the Disappeared

Discussed on President Alfonsin’s first day in office and set up in first week by president decree

Truth Commission

President appointed ten commissioners who “enjoyed national and international prestige, chosen for their stance in defense of human rights and their representation of different walks of life”

Truth Commission

Disappearances only: Kidnappings with no reappearance of the body

Sought to locate any missing person that might still be alive as well determine fate of all missing

Truth Commission

Nunca MasOver 50,000 pages40,000 copies sold on first day and 150,000 within first six weeks

Nine months7000 statementsNo public hearingsInterviewed over 1500 persons who survived torture centersNo missing person found aliveDocumented 8960 missing personsIdentified and documented with photograpphs at least 365 torture centers

Amnesty law eventually repealed and the commission’s evidence is handed over to the government prosecutors.

Five generals convicted and sent to prison.

Prillaman: Argentina

Opposite Paths, Same Results

Group Quiz

Can use this quiz to replace any quiz grade, missed or otherwise.

1. What is Prillaman’s key thesis concerning Argentina’s reformation of the judiciary?

2. How does Prillaman assess Alfonsín's reform attempts? What successes and failures?

3. What effect did Alfonsín's pragmatism have?

4. What were the primary features of Menem’s reforms? What two sets of factors affect his successes and failures? How?

5. What other goal was judicial reform linked to? What the irony related to this goal, in the end?

6. Compare Argentina’s judicial reform experience with Chile’s.

7. What are the implications for judicial reform?

8. How does the Argentinean and Chilean experiences fit with T&V’s theories of judicialization?

Different approaches, same result--failure Argentina’s reform failed because they didn’t

tackle all three prongs simultaneously Alfonsín’s reform goal targeted judicial

independence without dealing with access or efficiency

Menem’s reform goals target access and efficiency but didn’t address judicial independence

Each reformer’s failure to address structural flaws in the unreformed area undercut success in targeted area of reform.

What were the primary features of Alfonsín's reform goal and what was his rationale?

How does Prillaman assess Alfonsín's reform attempts?

What successes? Failures?

What effect did Alfonsín's pragmatism have?

Threatened individual judicial independence of many judges—including physical threat and widespread forced judicial resignation, including the Supreme Court of Buenos Aires province

More than six military rebellions in Alfonsín's last two years of office

PERCEPTION: courts were too weak to hold the military accountable

TO what other goal was Menem’s judicial reform linked?

To economic modernization and increased links to Western economy and trade

Judicial reform: increase investor confidence, attract foreign capital, and increase domestic productivity

Modernize and streamline the state apparatus

What was the irony of this goal and its link to judicial reform?

What were the primary features of Menem’s reforms?

What two groups of factors affected his level of success?

Where were his successes?

What are the failures that counterbalance these modest steps?

What are the some of the unanticipated consequences of the reforms?Ultimately where was the key problem in regard to the reforms?

Administrative Stuff

Office Hours tomorrowStudy PrepOnline Class WednesdayCourse Evaluations Monday

Prillaman and El Salvador

Let’s start at the end…

El Salvador

$4.5 billion US aid during 1980s 12 year civil war (1.4% of population

killed) Tens of thousands political killings and

disappearances, as well as large scale massacres

Truth Commission

Part of the brokered peace accord

Administered by UN with contributions from member states

6 months plus 2 months

Commissioners appointed by UN Sec’y Gen’l with approval of two parties

No El Salvadorans on staff

Testimony from 2000 plus witnesses

Over 7000 cases of killings, disappearances, torture, rape, and massacres

Collected data on additional 20,000 victims

REPORT: From Madness to Hope

Fails to report: death squads and the role of US support

President said the report failed to meet the public’s yearning “which is to forgive and forget this painful past”

Amnesty law five days after the report’s release

Major publication: leads to US release of some classified documents but not real substance until Clinton

Hayner credits with judicial reform

Prillaman: A decade of failed judicial reform had helped achieve what death squads and Marxist insurgents could not: they shattered the faith of Salvadorans in the rule of law.

Three Minute Reaction Paper

El Salvador

The Dangers of Small Thinking

What does Prillaman mean in his title?

Is this a valid assessment?

To what goal was judicial reform linked? What possible effect?

What two objectives?Increase individual independence of judges hearing sensitive human rights cases.Overcome chronic inefficiencies of the courts.

Through what means?

MEANS

Judicial protection units Special investigative unit and forensic

unit Legal advisory panel update and

modernize legal code Training program for judicial personnel

What does Prillaman conclude about the reforms generally?

What was the most critical hurdle to achieving judicial reform when Duarte takes office State of emergency What was unusual about this state of

emergency compared to those in most dictatorial or military regimes?

What constitutional protections might help a state deal with a state of emergency?

In what ways was internal and external politicalization extreme in El Salvador? Constitution gave judges set terms (three/five

years) that coincided with presidential elections Confirmed with simple majority vote in unicameral

legislature (pro forma) Supreme Court

Appointed all lower court judges and over 300 justices of peace

Could remove for any reason Licensed all lawyers and could disbar at will

Violence and threats against judiciary and juries Outdated and archaic civil code, and criminal

code

Key reforms (1st and 2nd attempts) How did they work out in reality?

Judicial Protection Units SIU and FU

What complication and ironic logic does Article 11 of the criminal code have here

CORELESAL What additional reforms in 2nd attempt

National Judicial Council Reformed selection process Internal and budgetary independence De-politicizing SIU and FU

Namibia and the Philippines

Previous involvement in Chile: JFK and LBJ

Highly classified document: The Chilean Election of 1964: A Case History 1961-64

CIA spent $4 million to get Eduardo Frei (PDC) elected

(included $2.6 m direct funds to underwrite more than half of Frei’s campaign budget)

CIA also conducted 15 other major operations in Chile

(covert creation and support for numerous civic organizations to influence and mobilize key voting sectors)

BIGGEST: massive $3 million anti-Allende propaganda campaign

Church Committee Report

“Extensive use was made of the press, radio, films, pamphlets, posters, leaflets, direct mailings, paper streamers, and wall paintings. It was a “scare campaign” that relied heavily on images of Soviet tanks and Cuban firing squads and was directed especially at women. Hundreds of thousands of copies of the anticommunist pastoral letter of Pope Pius XI were distributed by Christian Democratic organizations…Disinformation and black propaganda –material which purported to originate from another sources, such as the Chilean Communist Party—were used as well.”

ONE week: CIA propaganda group distributed 3000 anticommunist political posters and producing 23 radio-news spots per day, along with 26 weekly news commentaries

All directed at turning the Chilean voters away from Allende toward Frei

FREI wins with 57% of the vote

SECY of STATE Dean Rusk

TOP SECRET—EXCLUSIVE DISTRIBUTION memorandum to LBJ 8/14/64 (3 weeks before election) All polls favor Eduardo Frei over Salvador Allende” “We are making a major covert effort to reduce

chances of Chile being the first American country to elect an avowed Marxist president. Our well-concealed program embraces special economic assistance to assure stability, aid to the armed forces and police to maintain order, and political action and propaganda tied closely to Frei’s campaign.

Chile becomes the leading recipient of U.S. aid in Latin America

1962-1970 over $1.2 billion

(country of only ten million people)

Also $91 million in military assistance even though no internal or external security threats

CIA continued covert intervention through political action and propaganda campaigns

$2 million on 20 projects: enhance Frei’s standing and undermine Allende’s coalition

Significant investment in Chile by the time Allende is finally elected

U.S. Ambassador Korry: “fiduciary responsibility”—an imperial sense of obligation and entitlement to overturn the Chilean electorate

QUESTION: “Not whether but how and when the U.S. would intervene”

Helms hand-written notes of the meeting

Nixon’s directiveDOC # 1First record of American president ordering the overthrow of a democratically elected government.

DOC # 2

CIA memorandum: Helms meeting with top officials in the CIA’s covert operations division

El Mercurio

Over $2 million to keep paper running

The military project

Fall 1971: CIA began a deception operation

Told “U.S. will support coup against Allende ‘with whatever means necessary’ when the time comes” DOC 10