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DEMOCRATIC INSTITUTION BUILDING IN LATIN AMERICA: EFFECTS OF JUDICIAL REFORMS ON STATE ACCOUNTABILITY
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1.
INTRODUCTION
One fundamental task of third wave democracies (Huntington 1991) is the
establishment of the rule of law. In the 1980s, Latin American countries established democratic elections after a history of decades of authoritarian rule. With elections came democratically elected governments, but a new species of democratic regimes appeared. “Delegative Democracies” was the name O’Donnell (1994) used to describe the rule by elected civilian governments, which ones in power governed abusing the constitutional limits to their authority, often governing solely through emergency decree powers. The establishment of institutions of state accountability hence became an important challenge for the emerging democracies.
The judiciary, as guardian of the constitution and all established laws,
consequently acquired a fundamental role in the process of democratization. But strong and independent judiciaries, i.e. those able to restrain executive authority within constitutional limits, had been a rather rare phenomenon in the region. The judiciaries of newly established democracies lacked the basic constitutional protections for independence. More often than not, Supreme Court justices were constitutionally appointed and removed directly and solely by the executive. Supreme Court justices hence operated with no protection for their jobs and salaries than those provided by their informal relationships to the executive. Moreover, Supreme Courts of most countries in the region lacked effective constitutional review powers. Either because those were limited to their ruling over habeas corpus or amparo cases, or because there were important areas of legislation over which they were not allowed to rule (Larkins 1996). To be able to effectively submit the state to the law, judiciaries had first to be freed form manipulation by state and other powerful actors.
In the 1990s, Latin American nations, engaged in profound judicial reform
efforts to enhance the independence of their historically weak and subordinated branches (Messik 1999; Vaky 1998).
1
The content of reform packages variegates
from country to country, but all of them included constitutional changes to solve the problems associated with the lack of independence of the judicial branches and their relative weakness vis-a-vis the executive. What have been the effects of these
1
During the 1990s, Latin American countries engaged in major judicial reform projects, in most cases
with financial and technical aid from foreign agencies and international financial organizations. Since 1994 the World Bank, the Inter-American Development Bank and the Asian Development Bank have either approved or initiated more than $500 million in loans for judicial reform projects in 26 countries. Other government and private groups are also funding programs to modernize the judicial branch of government. See, Messik 1999. In the past decade the Latin American and Caribbean Bureau of the US Agency for International Development has spent close to $200 million in the past decade on justice projects in which every country in the region has participated to some extent. These projects range from $200,000 for a judicial exchange program in Mexico to a $36 million dollars six-year project aimed at multi-dimensional restructuring of Colombia’s justice system. See Vaky 1998 p.139.
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| | Authors: Inclan, Maria. and Inclan, Silvia. |
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2
1.
INTRODUCTION
One fundamental task of third wave democracies (Huntington 1991) is the
establishment of the rule of law. In the 1980s, Latin American countries established
democratic elections after a history of decades of authoritarian rule. With elections
came democratically elected governments, but a new species of democratic regimes
appeared. “Delegative Democracies” was the name O’Donnell (1994) used to
describe the rule by elected civilian governments, which ones in power governed
abusing the constitutional limits to their authority, often governing solely through
emergency decree powers. The establishment of institutions of state accountability
hence became an important challenge for the emerging democracies.
The judiciary, as guardian of the constitution and all established laws,
consequently acquired a fundamental role in the process of democratization. But
strong and independent judiciaries, i.e. those able to restrain executive authority
within constitutional limits, had been a rather rare phenomenon in the region. The
judiciaries of newly established democracies lacked the basic constitutional
protections for independence. More often than not, Supreme Court justices were
constitutionally appointed and removed directly and solely by the executive. Supreme
Court justices hence operated with no protection for their jobs and salaries than those
provided by their informal relationships to the executive. Moreover, Supreme Courts
of most countries in the region lacked effective constitutional review powers. Either
because those were limited to their ruling over habeas corpus or amparo cases, or
because there were important areas of legislation over which they were not allowed to
rule (Larkins 1996). To be able to effectively submit the state to the law, judiciaries
had first to be freed form manipulation by state and other powerful actors.
In the 1990s, Latin American nations, engaged in profound judicial reform
efforts to enhance the independence of their historically weak and subordinated
branches (Messik 1999; Vaky 1998).
1
The content of reform packages variegates
from country to country, but all of them included constitutional changes to solve the
problems associated with the lack of independence of the judicial branches and their
relative weakness vis-a-vis the executive. What have been the effects of these
1
During the 1990s, Latin American countries engaged in major judicial reform projects, in most cases
with financial and technical aid from foreign agencies and international financial organizations. Since
1994 the World Bank, the Inter-American Development Bank and the Asian Development Bank have
either approved or initiated more than $500 million in loans for judicial reform projects in 26
countries. Other government and private groups are also funding programs to modernize the judicial
branch of government. See, Messik 1999. In the past decade the Latin American and Caribbean
Bureau of the US Agency for International Development has spent close to $200 million in the past
decade on justice projects in which every country in the region has participated to some extent. These
projects range from $200,000 for a judicial exchange program in Mexico to a $36 million dollars six-
year project aimed at multi-dimensional restructuring of Colombia’s justice system. See Vaky 1998
p.139.
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