Agustín Barroilhet
We have come a long way since Domingo described Latin American supreme courts as relatively unable to assert their political function because of their lack of independence and efficiency.[1] Many supreme courts or judicial bodies since have decided presidential elections in the fashion of Bush v. Gore— a recent example being the case of former president Lula Da Silva of Brazil.[2] Oderbrecht, the Brazilian corporation which funded and corrupted politicians in most Latin American countries in order to get public contracts, left an impressive track.[3] Never in the history of the subcontinent has the judiciary shown more power than it shows now. Portales and Bolivar would be baffled.
Chile is a great example of the latter trend. The Pinochet case in London emboldened Chilean judges. At the turn of the 21st century they started actively prosecuting the military regime’s violations against human rights, something they had refused to do until then, invoking black-letter law provisions set in place by the regime itself.[4] Now the question is not whether human rights violators have to go to prison, but if the sick and elderly have the human right to die at home.
Efficiency is also on the rise everywhere. The advent of the information technology has finally caught up with the very conservative judiciaries and many countries have moved, or are moving, to paperless litigation. Cases on average still take years, but the load has grown relatively more than it takes courts to solve them. For an external observer, Latin American judiciaries stopped being subservient and have matured, at last.
Once again, Chile is a paradigmatic case. The country moved away from the inquisitorial criminal procedure inherited from the French tradition at the beginning of the 21st century and since then, it has changed most of its procedures to be based on oral or written presentations submitted through the internet. What used to be crowded desks and packed rooms are now relatively empty.
Yet, for all these ostensible improvements, the problems that affected judiciaries then—as explained by Domingo—are still acute problems today. Judicial appointments are still controlled by political coalitions that control the executive branch, the tenure and promotion of judges is still opaque and mostly controlled by superior judges, and no Latin American judiciary has shown the financial independence of their north American peers. Anecdotally, the new Chilean Minister of Justice said in a recent private meeting that was recorded with a phone and later leaked, “… the majority of Chilean judges are from the left…[because]… in the last decades there has been only 4 years of a right-wing government and 24 years of left-wing governments.”[5] If the explanation for the sorry state of the affairs in the early 1990s was the control of judicial appointments, the control of judicial tenure and the undue control of judicial activity through the budget which resulted in low independence and accountability, how does one explain the apparent shift?
Most commentators explain the change in the judiciary as the result of a change in the attitudes of judges toward the rule of law, in addition to changes in the legal profession.[6] Judges behave more independently and are more accountable despite being bureaucratically controlled more or less the same way, because they are more exposed to foreign trends and are now more conscious of the rule of law. According to this vision, though there are substantial variations among what judges consider enforceable even at a constitutional level and therefore their willingness to judicialize changes, they now have more leeway to invoke larger-than-local set of legal arguments to justify their rulings.[7] And there is some truth to this assessment. Latin American judiciaries now seem less insular and more attuned to the international concert.
Yet, this line of argument is too broad and conveniently ignores that the tools and practices that governed judicial branches have not changed substantially since the 1990s, inequality remains strong, and governments still hold the key to the bounty of controlling public resources. Certainly, it does not explain why judges outside criminal courts and the human rights realm, which are very much local and apply the old codes in most of Latin America, are also showing more independence from the political establishment.
A better approach to explain the change is to look for changes in branches outside the judiciary, the changes in the political markets,[8] and in what American political scientists call “regime politics analysis of interbranch relations.”[9] Since 2000, transparency has made partisan politics much more competitive, fragmentation is more common and divided governments are more frequent. Shifts from right to left and to the right again, which in the past took decades, now happen in a lapse of 5 years. Accountability and transparency have increased political competition because they have increased rotation and the frequency of coalition change. They have put traditional caudillos on the spotlight, and despite their popular support they have found it difficult to retain power. It is the absence of the stable dominant coalitions, like the PRI in Mexico, that are opening the space for more powerful judiciaries, in the full meaning of the word. Judiciaries are playing more important political roles, autonomous roles, and accountable roles because the fear of retaliation—the fear of the infamous “phone call”[10]—has since decreased.
However these new clothes should not deceive educated observers. Even if higher courts and constitutional courts of Latin America are seemingly more independent, more ‘politically’ accountable, and more powerful than before whatever the reasons, the mechanism by which judicial elites govern the judicial branch and lower courts are still in place and are still being used for the same old purposes of keeping the family together. Transparency has brought more political competition and thus, more leeway for courts, and technology has brought more efficiency. Yet, paradoxically, these tools have also increased accountability’s darker side, which is control. In the past, higher courts would take longer to hear cases on appeal and to exert disciplinary actions on lower judges, such that they would only make the “phone call” in cases in which their attention was required. This would give lower judges more leeway to exercise their independence. Today, higher courts don’t call but have plenty of tools to find deviant judges that are consistently challenging the status quo. Salient cases might be out of their scope now because of transparency, but the sum of invisible cases is not. This should be of concern.
The risk in a bureaucratic control of the judiciary is now more acute because the tools to control bureaucracies has generally improved. As part of the State apparatus, all judges should be subject to standards of efficiency and transparency, and to the performance indexes relevant for the fulfillment of their functions. The key issue is how these standards and indices are defined and how they affect the broad range of cases that are not salient enough to be in the news, but which are frequent enough to mean and in which powerful and repeated players, including the executive branch or commercial banks, exert their influence and come out ahead.
The body or entity in charge of balancing bureaucratic control and judicial independence must be determined according to the constitutional structure of each country and must be one that minimizes the risks of loss of judicial independence, particularly where the loss is less politically visible, as is the case with the lower courts. This may mean, in practice, that the corresponding body should be located inside or outside the judiciary, or as a constitutionally independent institution.
Transparency also requires moderation. Precisely because what is sought is for judges to act as such and not as politicians, transparency in judicial exercise must have limits and be institutionally mediated or be less fluid than what today, for example, social networks allow. This is important for higher courts. Otherwise, it risks the justices and constitutional courts’ judges speaking directly to powerful groups that help them rise in their judicial career, which is an increasing danger. But it is also important to lower courts when the cases they address are at risk of being exposed through websites and end in cyberbullying on social networks. Too much transparency or exposition outside judicial judgements weakens the application of the law and politicizes the appointment and career of judges, leaving less space for justice and the protection of minorities.
Paraphrasing Ferejohn, after a decade of growing political competition and the institutional development of the judiciaries, we have more independent judiciaries, but we are risking more dependent judges.[11]
[1] Pilar Domingo, Judicial Independence and Judicial Reform in Latin America, in The self-restraining state: power and accountability in new democracies 151–175, 155 (Andreas Schedler, Larry Jay Diamond, & Marc F. Plattner eds., 1999).
[2] Recently former Brazilian president Lula da Silva was imprisoned, while being the frontrunner in the 2018 presidential election.
[3] Nicholas Casey & Andrea Zarate, Corruption Scandals With Brazilian Roots Cascade Across Latin America, The New York Times, February 13, 2017. https://www.nytimes.com/2017/02/13/world/americas/peru-colombia-venezuela-brazil-odebrecht-scandal.html (last visited Apr 18, 2018).
[4] Javier Couso & Lisa Hilbink, From Quietism to Incipient Activism: The Institutional and Ideological Roots of Rights Adjudication in Chile, in Courts in Latin America (2011); Lisa Hilbink, The Origins of Positive Judicial Independence, 64 World Politics 587–621 (2012).
[5] Ministro Larraín: “La mayoría de los jueces son de izquierda,” El Mostrador, April 8, 2018, http://www.elmostrador.cl/noticias/pais/2018/04/08/ministro-larrain-la-mayoria-de-los-jueces-son-de-izquierda/.
[6] Lisa Hilbink, The Origins of Positive Judicial Independence, 64 World Politics, 587–621 (2012).
[7] David Landau, Judicial Role and the limits of constitutional Convergence in Latin America, in Comparative Constitutional Law in Latin America (2017).
[8] J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEG. STUD. 721 (1994), Druscilla L. Scribner, The Judicialization of (Separation of Powers) Politics: Lessons from Chile, 2 Journal of Politics in Latin America 71–97 (2010); Druscilla Scribner, Distributing Political Power, The Constitutional Tribunal in Post-Authoritarian Chile, in Consequential courts: judicial roles in global perspective 114–137 (Diana Kapiszewski, Gordon Silverstein, & Robert A. Kagan eds., 2013).
[9] Jeb Barnes, Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making, 10 Annual Review of Political Science 25–43 (2007).
[10] The “phone call” refers to judges in higher courts (judicial elites) directly intervening in cases before lower court judges by means of a phone call, whether literal or figurative.
[11] John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. R. 353 (1998).