Issues in Latin America - Gardner Bond Trabolsi Portal

Issues in Latin America

CURRENT ISSUES IN LAW AND DEVELOPMENT IN LATIN AMERICA

KEY WORDS: Latin America, Judicial Reform, Law and Development, Sustainable Development

This work summarizes current issues found in the literature dealing with Law and Development in Latin America. From a substantial body of literature I have concentrated on two integrated issues: the origin, foundation, and characteristics of the judicial regime prevalent throughout Latin America on the one hand, and some of the regional responses to the internal and external forces driving the call for judicial system reform on the other hand.

This work conflates judicial and legal reform in that one could evaluate the structure and administration of the place where courts make decisions separate and apart from an evaluation of the laws upon which the courts in theory operate. Some of the articles summarized here concentrate more on one aspect than the other of those two issues. I deal with them as part and parcel of the same set of assumptions that are more or less a function of my experience as a lawyer in the United States: the courts are the place where citizens go to get justice. Good judges need good laws and fair and transparent procedure to achieve justice.

Most if not all scholars locate in its Colonial history the origin of the current state of affairs in the Latin American judicial system. With the exception of a few Caribbean islands under English control, for over 300 years the Spanish and Portuguese monarchies controlled the region south of what is now the United States' border with Mexico. Various independence movements took hold in the early 1800's, and most of the region gained independence from Spain and Portugal by about 1870. The Cubans might argue that they did not gain their independence from the colonial powers until Fidel Castro's revolution brought communism to Cuba in the late 1950's. See Wachs (1994). But the role and public perception of courts and judges in Latin America today is heavily influenced by the role the Spanish and Portuguese crowns set for them during the colonial occupation.

Spain and Portugal were and still are to a large extent civil law countries. Within the civil law tradition (and exaggerating for the sake of emphasis), the courts are closely aligned with the state. Whereas in the common law system the argument is that the life of the law is not logic but experience, in the civil law systems law is thought to be a science, the product of reason, free from any moral or political judgments and found in a priori codes that determine the outcome. Oral hearings before a judge and trial by jury are not recognized procedures. And as fate would have it, by virtue of the colonial powers' desire to strip the new world of its wealth, the courts in Latin America were even more aligned with the interests of the state.

Following independence, the governments throughout Latin America have been characterized by very strong executive and very weak legislative and judicial functions. All the newly independent nations of Latin America adopted constitutions. By way of example, Mexico's Constitution is a "programmatic" document, subject to easily accomplished change, and has been amended 350 times since 1917. These institutional characteristics of the inherited colonial system have fostered the growth of a judiciary that is unaccountable, unadaptable, distant from the people and therefore unable to take into account social realities, and unwilling to change. See Garcia (1998), Linarelli (1996), Taylor (1997), Vargas (1996).

Internal and external forces are driving a call for reform in the judicial systems throughout Latin America, and internal and external actors are implementing reform. Attempts in the 1960's and 1970's to implement reform are criticized for lacking local knowledge. See Dakolias (1995). Anenson (1997) advocates the election of judges. Gesell (1997) advocates the acceptance of indigenous people's customary law. With input from civil society groups Guatemala has established local "Justice Centers" that use simplified procedures, public education, and interpreters in the non-Spanish language Indian communities. Hendrix (2003). Legal aid programs in Chile have improved poor people's access to justice. Samway (1996). A unique history of the absence of colonial control in Costa Rica may allow a recently created Constitutional Court to succeed. Knox (2001).

One response to an inadequate judicial system is to privatize law enforcement. Kimmerling (2001) argues that privatization of environmental law and regulation in Ecuador's contract with Occidental Petroleum for oil exploration and extraction is bad policy because it allows the state to abandon its responsibility to protect the people and environment. Another response that is typical of Latin American history is to militarize judicial functions. Yamin and Garcia (1999) argue that the militarization of police work in Mexico in response to a rapid increase in crime has led to increased human rights abuse.

Mexico recently overhauled its laws governing secured transactions in non real property assets in an effort to encourage extensions of credit for economic growth. Shepard (2001). In what may be a response to judicial system inefficiency, one feature of the new law is the right to self-help repossession. Constitutional reforms in Mexico in 1994 may help to strengthen the role of the courts but the ability to seek judicial review of government actions remains limited. Taylor (1997).

External forces and actors also are driving judicial system reform. Within the discourse of sustainable development the emphasis is on "access" to information, process and justice. Dannenmaier (1997). Global economic integration and privatization of services and production is leading to a transfer of national sovereignty to supra-national means of governance in arrangements like the North American Free Trade Agreement. Zamora (1997), Morales (1999). Zamora asks whether principles of sovereignty as enunciated in the Calvo Doctrine will survive the move to NAFTA-like forms of governance.

A fundamental premise of the literature reported here is the belief that the state should provide a place where conflict in and among citizens, business interests and the state itself can be resolved fairly. To reach that goal, this literature indicates that significant institutional obstacles must be overcome. As the national governments begin to accept and implement that goal, freedom and opportunity should increase.

ANNOTATIONS

Anenson, T. Leigh, For Whom the Bell Tolls ... Judicial Selection by Election in Latin America, 4 Sw. J. of L. & Trade Am. 261 (1997) Southwestern Journal of Law and Trade in the Americas

The author advocates reform of judicial selection in Latin America by adoption of democratic elections of the judiciary. Her argument is that an elected judiciary, as opposed to the present systems of appointment, will create a stronger, more independent, and more responsive system in Latin America.

The key characteristics of judicial reality in Latin America point to the need for change. First, corruption invades all aspects of the governments, including the court system. Second, because the universal method of judicial selection in Latin America is to appoint judges, political influence impacts judicial selection. In some cases entire judiciaries are replaced by a new ruling military junta. Third, the rigid and formalistic nature of the civil law system inhibits judges from taking into account social realities.

The author contends that each of these problems can be mitigated significantly by the direct election of judges. But perhaps her most compelling argument is that direct election of judges will create an environment in which judges have reason to adapt justice to fit existing social realities. Citizens and scholars alike want judges who can "breathe life into the law if the law is to facilitate rather than obstruct development, with custom, history, and experience all playing a more important role."

Dakolias, Maria, A Strategy for Judicial Reform: The Experience in Latin America, 36 Va. J. Int'l L. 167 (1995) Virginia Journal of International Law

Dakolias summarizes the status of judicial reform in Latin America in a framework of six areas: 1) judicial independence, 2) judicial administration, 3) procedural codes, 4) access to justice, 5) legal education and training, and 6) bar associations.

The premise of her summary is that a free and robust market can thrive only in a political system where individual freedoms and property rights are accorded respect and where redress for violations of such rights can be found in fair and equitable courts. The purpose of the judiciary in such societies is to order social relationships among private and public entities and individuals and to resolve conflicts among these social actors. She also argues that Latin America's participation in trade groups like the World Trade Organization and regional trade associations like MERCOSUR, and the desire to accede to the North American Free Trade Agreement brings with it a responsibility to pursue harmonization of laws. But reform is difficult because the primary participants in the system- judges, support personnel, lawyers and government officials -are perceived to be benefiting from the status quo. She alleges that rent-seeking behavior is endemic to a system where insiders are rewarded for providing less than optimal service.

There are three aspects to judicial independence: 1) detachment from interest groups, 2) unwillingness to bend to the views of peers within the judicial system, and 3) independence from other governmental institutions. Throughout Latin America interference by the legislative and particularly the executive branches of government has been a common phenomenon and due to unique historical, political and structural forces the judicial branch has not been able to act as a coequal and independent institution. The author suggests that some countries may in fact benefit from a strong executive that can act efficiently. The manner by which judges are appointed, evaluated and disciplined can improve judicial independence. Argentina, Ecuador and Peru have established judicial councils, known as a consejo, whose responsibilities include court administration, human resources and judicial and personnel misconduct. These councils may include representatives from all branches of government and civil society. In Chile, the President selects nominees from a list of names provided by the Supreme Court. In any event, the author argues that a transparent system is necessary to foster public respect for the judiciary.

Reforms in judicial administration are needed to reduce severe backlogs, low salaries and poorly trained staff. She argues for reform of court management so that the judges can spend more time judging. For example, in Ecuador the Supreme Court President signs checks for gasoline and decides whether a court employee in the province may take an extended leave for sickness. Peru, Bolivia and Chile now use court administrators to handle such personnel matters.

Case administration can be improved by keeping accurate case statistics of case progress and by encouraging judges to take an active role in moving cases through the system.

Procedural codes for processing cases need revision. Some countries are adopting the use of oral procedures, but the courts are unfamiliar with oral procedures. Many codes provide time limits, but most judges do not enforce them. Lastly, the author argues for a reduction or elimination of ex parte contact with the courts as it contributes to corruption.

Access to justice can be evaluated by a number of factors: the time it takes to adjudicate a case, the parties' direct and indirect costs of litigation, the ability of the potential users to have knowledge of, understand and follow the procedural steps during the life of a case and physical access to the court. The author argues that access to justice can be improved by encouraging the use of mediation or other alternative dispute resolution mechanisms, and use of small claims courts, all of which should reduce costs. In addition, court personnel should be trained to recognize and resist gender discrimination.

Legal education and training includes new lawyers and judges. In general, there are two models of judicial training, which are derived from the civil law/ common law traditions. The civil law systems tend to favor judicial schools, which train judges and prosecutors together. In the common law traditions, judges are taught by a peer group, separately from prosecutors. Most Latin American countries are leaning toward the judicial school model although even these schools are not fully functional.

The author concludes her article with the observation that the law and development movement of the 1960's and 1970's, which aimed to modernized legal systems of developing countries by transplanting legal codes from the more developed countries as well as by exporting the U.S. legal education system was heavily criticized and failed because those who attempted to implement these reforms lacked knowledge of existing conditions and local culture. She argues that reform must take into account local conditions.

Dannenmaier, Eric, SUSTAINABLE DEVELOPMENT SYMPOSIUM: Democracy in Development: Toward a Legal Framework for the Americas, 11 Tul. Envtl. L.J. 1 (1997) Tulane Environmental Law Journal

This article summarizes the evolution of the efforts to democratize Latin America as those efforts advanced at several meetings of world leaders beginning with the Stockholm conference of 1972.

The author's argument is that a market untempered by democracy will soon become a tool of political repression and social stagnation. For economic growth and development to be sustainable, they must proceed within a framework of transparency, participation and democratic decision making.

Experience in Latin America suggests that building a framework for participation is not an easy task. In some places there may be philosophical resistance to engaging civil society in decision-making.

The sustainable development field has seen the significant growth of NGO's, which are not typically membership or constituency based; instead they are "expert" organizations that derive their credibility from their academic knowledge of a subject rather than their representation of a specific group of citizens. Usually they receive their funding from foreign sources. He calls these groups important in societies where individuals are not historically inclined to join a policy dialogue directly.

At a series of high level meetings of world leaders there have been explicit efforts to advance the creation of public space that is open, inclusive, informed, and functional. The roots of this effort are the Stockholm Declaration of 1972. The Stockholm Declaration did not speak openly of democracy but it did conclude that all citizens must share "equitably in common efforts." This imperative was reified at the 1992 United Nations Summit of Environment and Development held in Rio de Janeiro. The Rio Declaration and its Agenda 21 called for the integration of the voices of women, youth, indigenous communities, trade unions, farmers and others in development planning.

Principle 10 of the Rio Declaration established three key principles: 1) access to information, 2) access to process, and 3) access to justice. These "access principles" are supposed to provide a focus for legal and regulatory standards that assure open decision-making processes. The 1994 Miami Summit and 1996 meeting in Montevideo, Uruguay advanced these notions by emphasizing the need for a strong and diverse civil society.

But a tension has begun to develop over the role and structure of non-governmental organizations. As the governments are pushed to become more transparent and accountable to the public, attention has focused on the lack of transparency and accountability among the NGO community.

The imperative to advance public participation was carried forward at the hemispheric level at the 1996 Bolivia Summit of the Americas for Sustainable Development, whose participants formulated the "Inter-American Strategy for Public Participation. (ISP)" While also addressing the process problems of fostering participatory government, the expert group in Miami agreed that the ISP should focus on four priority areas: 1) legal and institutional frameworks, 2) systems of gathering, sharing and disseminating information about participation, 3) capacity building for public and private sectors, and 4) consultative fora as a mechanism.

The author concludes with the hope that these initiatives will secure for citizens a meaningful role in deciding how their countries will be developed and how their futures will be shaped.

Garcia, Felipe Saez, The Nature of Judicial Reform in Latin America and Some Strategic Considerations, 13 Am. U. Int'l L. Rev. 1267 (1998) American University International Law Review

Garcia obtained his law degree at the Catholic University of Chile and works as Senior Operations Officer of the World Bank for Private Sector Development and Public Sector Reform. This article addresses the need for judicial reform in Latin America.

Garcia identifies several imperatives that are driving the movement toward judicial reform and these include the role the courts should play in protecting human rights, a need for the courts to be flexibly responsive to the democratization of society and therefore more transparent and accessible to the citizens, a concomitant need to mediate the growth of the market economies, the problem of crime and humane punishment, and a growing perception that corruption within the judiciary is intolerable. The author also notes the increasing efforts by the United States government and multilateral financial institutions in promoting judicial reform in Latin America.

Garcia uses the conceptual framework developed by Douglas C. North in evaluating institutions, organizations and institutional change. Accepting the indisputable premise that North's institutions are immersed in a historical context, Garcia locates the current state of the Latin American court system and its judiciary in the Spanish Colonial era. Except for certain Caribbean states, all of Latin America was occupied and controlled by the Iberian Peninsula's monarchies, with the Spanish Crown the dominate power throughout all of Latin America other than Brazil.

The Spanish Crown, whose power was absolute over all its colonial subjects' physical, social, and religious lives, empowered the emergence of a professional central bureaucracy that was directly accountable to the Crown and vested with unprecedented political and administrative powers. The Spanish legal tradition is within the civil code family and derived from Roman and Canon Law; under this tradition the judge's role in a civil dispute is to determine which rule governs the case and there is no discretion to deviate from the literal text of the rules. The judiciary has no authority to use discretion or judgment in applying the rules of law, but is duty bound by the legal text irrespective of the social, political or ethical consequences. Within the realm of criminal law, Spain imposed on Latin America the inquisitorial criminal system in which the courts serve as investigator, prosecutor and adjudicator and an accused person his little opportunity to control the flow of the case or present any defense until very late in the process. It appears that there is often if not always no right to jury trial.

The author contrasts the Spanish and English response to their respective fiscal needs that arose in the seventeenth century. Spain attempted to solve its fiscal needs by reinforcing the monarchy's absolute power, further centralizing decision making, and jeopardizing property rights. The court's role was perceived mostly as an enforcer of an ever-growing body of statutory and administrative directives whose aim was to suck as much wealth out of the colonies as possible. In contrast, the English Crown sought political compromise with the most influential groups mainly by delegating part of the Crowns' political powers to representative bodies in return for increased fiscal revenues. The devolution of power to parliament and the judiciary enabled the growth of judicial decision-making that is informed by the communities' own experiences and traditions, what we now know as common law.

Following independence, which the author contends was not based on a deliberate agenda for social and political change, the Latin American countries maintained the authoritarian institutional structures in the colonial model, which are characterized by kinship, political influence and family prestige, highly personalized power relationships and a highly arbitrary and intrusive bureaucracy. Most Latin American countries rigorously adopted the separation of powers doctrine, but its aim was not to balance power in society but rather to protect the executive and legislative branches from judicial interference. The author contends that political instability and institutional crises over time have subjected regional judiciaries to intense political influence, including their virtual subordination to the prevailing political forces.

These institutional characteristics of justice in Latin America have fostered the evolution and growth of a judiciary that is unaccountable to the people, unable to take into account the changing social and economic realties of their societies, increasingly distant from the people who are subject to their decisions, and fortress-like in their resistance to change.

The author concludes with some suggestions of how judicial reform might move forward. The first phase would focus on changes aimed at increasing the degree of responsiveness and accountability of the judicial governance structure to the needs of the increasingly modern and democratic regional societies. To this end, the author advocates a public and merits based judicial selection system, and he cites Chile's recent constitutional reform as one although very small positive example. In Chile, five of the twenty-five members of the Supreme Court must come from outside the judicial career stream and all are subject to term limits. Another element of the first phase is to increase the level of discourse about reform at the academic, judicial and political levels. The second phase of reform depends on a critical mass of the judges themselves who must come to recognize a profound need to bring open and democratic justice to the people.

Gesell, Jeffrey N., Customary Indigenous Law in the Mexican Juridical System, 26 Ga. J. Int'l & Comp. L. 643 (1997) The Georgia Journal of International and Comparative Law

The author uses the context of the Zapatista uprising in Chiapas Mexico to advocate the acceptance of indigenous and customary law into the nation's general law structure. One of the complaints the Zapatistas asserted was the lack of respect for indigenous people's customary law.

Although Mexico's revolution came from the peasant and landless class, the plight of the nation's Indian communities was not addressed until President Carlos Salinas de Gortari amended the Mexican Constitution to recognize the rights of indigenous peoples to protection for their languages, cultures, practices, customs, resources and specific forms of social organization in 1992. These nominal changes to the Mexican Constitution did not ameliorate the condition of the indigenous peoples, whose own armed revolution erupted in Chiapas in 1994.

A Peace Accord in 1996 tempered the dispute, but as of the date this article was published, there was no comprehensive settlement of the Zapatista claims.

The author finds theoretic but impotent support for the recognition of customary law in several international conventions such as the Draft United Nations Declaration of the Rights of Indigenous Peoples, the Inter-American Declaration on the Rights of Indigenous Peoples, the United Nations 1948 Universal Declaration of Human Rights. Each of these conventions contain disputed and contested notions of the identity of the indigenous and the extent to which self determination will be accepted.

The author contends without providing any empirical evidence that the acceptance of a place for customary law within a judicial system will not lead to fragmentation of the judicial system or its government.

Hendrix, Steven E., Guatemalan "Justice Centers": The Centerpiece for Advancing Transparency, Efficiency, Due Process, and Access to Justice, 15 Am. U. Int'l L. Rev. 813 (2000) American University International Law Review

This article reports on a USAID program to improve access to justice in Guatemala. The author was Program Coordinator for the design and implementation of "Justice Centers" throughout Guatemala.

Between 1962 and 1996 an estimated 200,000 Guatemalans were killed in a fratricidal war in which it appears that the government sought to exterminate a large part of the Maya population. The period is characterized by the absence of the rule of law, gross human rights abuse, political assassinations and corruption. Since 1985, the country has experienced a triple revolution involving changes from war to peace, authoritarianism to participatory democracy, and a state centered economy to a global market. The Peace Accords recognized the need to reform the justice system.

Several factors contributed to the weakness of the Guatemalan justice system. The justice system, which was simply absent from large parts of the country, had ancient administrative systems and antiquated procedures all of which provided fertile ground for corruption. The lack of any formal or uniform record keeping procedures permitted the "loss" of files for a fee. A vertical organizational structure with investigative work delegated to untrained and unprepared officials, little cooperation between police and prosecution, no case intake or tracking system, and no experience with plea bargaining caused significant delay to case completion and uncertainty in outcomes.

A key aspect of the USAID program was the design and development of Justice Centers following consultation with the judges, public defenders, prosecutors, private practitioners, police, municipal representatives and civil society organizations. In this process, the reforms are seen as locally derived and not USAID imposed. The Justice Centers use standardized forms for intake and tracking of cases, modernized docket and case filing systems, central filing and a unified clerk of court function. One change was to reduce the number of clerks who had to do something with every file from as many as 25 to 6. Reforms that include greater cooperation and communication among the players in the system are thought to reduce the potential for corruption. Education of law students, judges and court personnel has led to improved administration. The Justice centers have devoted energy to recruiting and training interpreters for the 40% of the population for whom Spanish is not their native language.

USAID also sought to coordinate its efforts with several other donor countries and agencies who were working in the same area. Although there has been some institutional resistance from some quarters, the author is optimistic about the reform he has observed.

Kimerling, Judith, International Standards in Ecuador's Amazon Oil Fields: The Privatization of Environmental Law, , 26 Colum. J. Envtl. L. 289 (2001) Columbia Journal of Environmental Law

Professor Kimmerling provides a detailed analysis of the contract between Occidental Petroleum and the government of Ecuador for exploration and production of oil. The concession covers a region of Ecuador that is within the Amazon River drainage and occupied in part by indigenous people. The author accepts at face value the pledges made at the 1992 Earth Summit to advance the cause of sustainable development by encouraging participatory and transparent decision-making and giving a voice to the poor and indigenous communities. She concludes that the contract represents an unwise privatization of environmental law by a government that is interested more in production and its revenue than it is in protecting the environment.

Ecuador has law on the books that should provide substantial power to the government to advance the cause of sustainable development. Although its history is characterized by successive military coups and rapid and arbitrary transfers of power by executive authorities since it became a republic in 1830, the country has been a nominal democracy since 1979. Since 1984, Ecuador's constitutions have formally recognized the right of individuals to live in an environment "free from contamination." The current Constitution, adopted in 1998, expands environmental rights by declaring that the State shall protect the right of the population to live in a healthy and ecologically balanced environment and guarantees sustainable development. The Constitution recognizes and guarantees the right of affected communities to participate on an informed basis in decision making by the State that could affect the environment. Article 84 directs the state to "recognize and guarantee" the rights of indigenous peoples, who comprise an estimated 40% of Ecuador's population. In addition, legislation in 1972 and 1974 sought to protect water from contamination.

But in practice, Occidental's contract and performance is under the review of the Ministry of Energy and Mines. The author contends that Ministry and Petroecuador, a government agency whose objective is oil production, have ceded substantial regulatory control to Occidental in its contract. Like many parts of Latin America, Ecuador's executive is very strong and its judiciary is weak, and the rule of law appears to be of little interest to the countries decision makers. The author quotes a popular saying that "the law is only for those with the ponchos"

The author critiques the entire contract, attempting to show that the standards it adopts are no standard at all, and the lofty language of protection of land and people is a "veneer" for policies that in fact serve only Occidental's goal of getting as much oil out the ground as they can for as little short term cost to them as possible. Many of the contractual requirements are set forth in the Environmental Management Plan (EMP), but many of the terms are too vague. For example "ecological balance" and "lost biological diversity" are contested and non-specific goals that should be better defined in order to achieve their public interest imperative.

Professor Kimmerling's primary objection to the EMP is that is seeks to legalize norms that the company have defined, thereby ceding rule making authority to Occidental throughout the life of the operations, with no requirement for public disclosure and consultation or review and approval by government officials.

Ecuador law and Occidental's contract requires Occidental to use international practices. These provisions reflect a vague but widely held belief that anything "international" is better than something that is Ecuadorian. The author objects that there should be a more precise definition of exactly what are the "best" international practices because, without specificity, the oil company appears to have the discretion to choose those practices that it and its cohorts use throughout the developing and developed world. She finds no better specificity in guidelines prepared by the United Nations Environment Programme.

Occidental makes much of its compliance with ISO 14001, which is a private voluntary international standard for environmental management systems. It is a certification process that certifies management systems and not outcomes or performance. The author dismisses the use of ISO 14001 as only so much paperwork.

The author concludes by noting that the proponents of globalization argue that free trade helps developing nations to move toward sustainability by exporting international standards and strengthening democratic institutions and the rule of law, including environmental law. But her case study shows only that the privatization of environmental law represents an abdication by the State of one of its most basic responsibilities to its people. Corporate ethics and self-regulation should play a role in raising levels of environmental protection in the oil fields, but they are not a panacea that can replace government regulation. The author proposes regulation that would 1) clearly identify standards, 2) verify compliance, 3) require ongoing evaluation of the effectiveness of the standards, 4) identify standards that raise environmental protection, 5) impose transparent and credible monitoring, and 6) encourage a public outreach that invites members of civil society to engage in a participatory audit.

Knox, Michael, Continuing Evolution of the Costa Rican Judiciary , 32 Cal. W. Int'l L.J. 133 (2001) California Western International Law Journal

This article discusses the state of judicial reform in Costa Rica. Written in 2001, the author argues that Costa Rica's history has enabled the country to escape some of the infirmities present in other Latin American countries and implement significant reform. Costa Rica, like all the Spanish Colonies, was completely subjugated to the will of the Crown. Every privilege and position, economic, political, or religion came from the King.

Roman law was imposed on the Iberian Peninsula as early as 250 B.C. although local Celto-Iberian customary law continued to play an important part of private transactions. Roman law was not replaced when the Germanic tribes and Visigoths conquered Spain, in part because the Germanic law was heavily influenced by Rome. Even after the Moors conquered Spain in 710 A.D. Roman and local law continued to govern its population. However, over the 800 years of re-conquest by which the Moors were eventually expelled, local laws known as fueros arose in individual municipalities as they gained independence. In 1255 Alfonso the Wise sought to implement a uniform Spanish law, which became know as the Feuro Real. And the Moors were finally expelled from Spain in 1492.

The Crown established the Council of the Indies to govern the colonies. The Council regulated all aspects of colonial life by serving as an administrative board, legislative branch, and appeals court all at the same time. The Council of the Indies served as the ultimate judicial authority for the colonies. Their decisions were implemented in the new world by audencias. The local municipalities were administered by alcaldes who were chosen through a combined system of elections and appointment. The alcades decisions were subject to review by the audencias, but the reality is that this colonial governance structure left little to no room for the development of a means of local control.

In part, the author argues, this lack of local control led to a practical disregard for law. Law remained important in theory and largely ignored in practice. The author contends this attitude is still prevalent throughout Latin America today. One other characteristic of Latin American governance is that the judiciary and legislative branches of government are very weak vis a vis the executive.

Costa Rican history suggests reasons their people may more easily avoid the problems endemic to Latin American justice. Because of geography and an inability to get the local residents to work the farms, Costa Rica's development took a different trajectory than its neighbors. The author contends that Costa Rica became a rural democracy in which there were no social classes or castes, no despotic functionaries who looked down on others, no powerful Creoles owning land and slaves and hating the Spaniards, and no oppressed mistizo class. Although certain land owners grew wealthy in the coffee and banana trade, Costa Rica seems to have developed a more egalitarian society.

In this context, following independence in the early 1800's, several institutions that fostered a sense of freedom developed. The author contends these include a free press, expulsion of the Jesuits and secularization of the schools and cemeteries, and a rather robust belief in elections.

The author summarizes the difficulties common to judiciaries throughout Latin America: 1) fail to reflect the social realities of the people, 2) weak in power in relation to the executive, 3) lack of independence, 4) lack of transparency, 5) corruption, and 6) lack of access. The author uncritically asserts that the supposed need to overcome these difficulties in order to foster economic growth in the world economy provides an economic incentive to change. Many of these difficulties can be minimized if not reduced by resort to alternative dispute resolution (ADR) mechanisms. Implicit in the movement to ADR is the recognition that the courts are not the best forum for resolution of disputes among members of society.

In 1989, Costa Rica adopted legislation that appears to address all of the difficulties described above. The law created the Cuarta Sala of the Supreme Court. In the nature of a Constitutional Court, the Cuarta Sala's mandate was to "guarantee the supremacy of the norms and constitutional principles." The law expanded the court's jurisdiction and made it easier for citizens to commence a complaint. To further its goals, the Supreme Court has undertaken an extensive effort to educate the public about their rights and the operation of the courts. Details of recent decisions and recently enacted laws and decrees can now be accessed without charge in the internet. The criminal code was amended to provide for oral proceedings, which means public trial, which in turn have helped to make the judges publicly accountable for their decisions.

The author concludes by noting that one reason for the success of these reform efforts is that the reform came from within Costa Rica. Contrasting the apparently failed law and development efforts of the 1960's and 1970's, the author contends that the recent reforms are led by Costa Ricans who have an intimate understanding of the existing system and its cultural heritage.

Linarelli, John, Anglo-American Jurisprudence and Latin America, 20 Fordham Int'l L.J. 50 (1996) Fordham International Law Journal

The author provides a basic analysis of some of the lingering civil law traditions that may inhibit the growth of the respect for the rule of law in Latin America. All the Latin American countries, with the exception of a few of the Caribbean countries adopted the Civil Code system of laws from their European colonizers.

One reality that has evolved is the growth of the informal sector of commercial and non-commercial lives. The author relies on Hernando De Soto's work, which documents the extensive role of the informal sector in life in Peru. According to De Soto the formal legal system is oppressive and serves only elite interests. As Mario Vargas Llosa, a Peruvian novelist, said, "when legality is a privilege available only to those with political and economic power, those excluded - the poor - have no alternative but illegality." The author notes that many Latin American countries, with World Bank assistance, have attempted to formalize these informal activities. This may be a tacit recognition that the civil codes fail to reflect social reality.

In many respects the Latin American judiciary fail to properly reconcile law with social realities. This may be attributable to the nature of the civil law system. In the civil law system, law is considered a science, and in a pure system there is no case law or stare decisis. The Code is supposed to resolve in advance all societal conflicts. As a result, judges have little discretion to shape decisions to fit social realities. There have been within the Latin American judiciary some recognition of the need to use discretion. The author cites the contemporary experiences in Germany, France and Switzerland, where civil law judges have grown used to exercising discretion to adapt the law to the social realities in which a particular case arises.

Judicial review has also been very weak in Latin America. Evasion of law is a prominent feature of life in Latin America. Latin American history has been characterized by de facto regimes that occupy power by force; democratic elections are recent phenomena. Civil Code systems are also dependent on legislatures who adopt codes and in Latin America legislatures have been traditionally weak.

The author argues that the U. S. "philosophy of law" is rooted in pragmatism, citing Justice Holmes observation that the life of the law is not logic but experience. In contrast the Latin American philosophy of law is derived from Hans Kelsen's analytical positivist theories set forth in his Pure Theory of Law. To Kelsen, law is science, the product of reason, free from any moral or political judgments, and separate from the concept of justice.

The author opines (and hopes) that these limitations will be overcome by a growing legal realist movement that takes social realities into account. He does believe that the consolidation of democracy is a prerequisite to the growth of legal realism.

Morales, Isidro, NAFTA: The Governance of Economic Openness, 565 Annals 35 (1999) The Annals of The American Academy of Political and Social Science

Professor Morales is the chairman of the International Relations and history Department at the Universidad de las Americas-Puebla, in Mexico. This article describes in detail the governance procedures under the North American Free Trade Agreement (NAFTA).

NAFTA is intended to govern trade and investment between Canada, the United States and Mexico. The treaty establishes a multi-layered regime of alternative dispute resolution mechanisms, which include negotiation of conflicts that threaten or actually challenges any stipulation of the agreement and quasi-adjudicative panels of arbitrators, whose decisions may in some case be mandatory.

The author contends that the NAFTA regime is redefining the governance of trade and investment exchanges within North America. Authority is shifted up and down. Authority has been transferred to the substate level because firms and other nonstate actors participating in the civil society have been empowered by NAFTA normativeness in some key issue areas such as trade remedy laws, investments and to a lesser extent labor and the environment. Authority is also transferred up to transstate institutions in the form of the Trade Commissions and the NAFTA arbitration panels.

Accepting uncritically the argument about the demise of the role of the nation-state, Professor Morales argues that NAFTA is facilitating economic governance in a system that is moving from the nation-state as the most important actor of that system, to a multi-actor international system in which firms, civil society organizations, and multilateral institutions are playing a salient role. I would suggest that this process is also another response to the absence of a meaningful role for the courts in Mexico.

Samway, Michael A., Access to Justice: A Study of Legal Assistance Programs for the Poor in Santiago, Chile, 6 Duke J. Comp. & Int'l L. 347 (1996) Duke Journal of Comparative & International Law

Samway discusses the status of efforts to provide legal assistance to the poor in Chile as of 1996. Chile underwent significant ideological and economic disarray and polarization beginning in the early 1970's under socialist President Salvador Allende and then nearly two decades of repressive military rule that followed. Since returning to democracy in about 1991, the Chilean government has seen a relationship between reduction of poverty and improvement of poor people's access to justice.

Chile's 1980 Political Constitution guarantees equal protection before the law and a right to legal representation. But limited budgets have prevented full implementation of these goals.

The author reports one study of rural dwellers who listed in the following order the problem areas that should be addressed most urgently by the legal system: 1) lack of employment contracts 2) unfair termination of employment 3) absence of property title 4) rape 5) domestic violence 6) livestock theft 7) police abuse 8) armed robbery; and 9) water disputes.

Since 1981 the Corporation for Judicial Assistance has been the government's primary tool for legal aid work. The Corporations for Judicial Assistance are staffed by attorneys, social workers and recent law school graduates. The recent law school graduates are required to devote six months of unpaid services. University Clinical programs also provide some legal services to the poor. Privately funded legal aid and social service organization also provide some legal services for the poor.

In 1993 the Ministry of Justice implemented a pilot program called Access to Justice in several poor communities. One key function of this program is to educate poor people about their legal rights and obligations.

The author concludes with his observation that as Chile puts the pieces of civil society back together, implementing effective legal aid programs for the poor will be an important mechanism to help alleviate poverty and social inequities in Chile.

Sheppard, Hale E., Overcoming Apathetic Internationalism to Generate Hemispheric Benefits: Analysis of and Arguments for Recent Secured Transactions Laws in Mexico , 10 J. Transnat'l L. & Pol'y 133 (2001) Florida State University Journal of Transnational Law & Policy

This article discusses the change to Mexico's law governing secured transactions in property other than real property. The new law completely reorganized a whole series of disparate and inconsistent laws governing secured interests in many forms of assets other than real estate. Under the new law, self help repossession of secured property is permitted.

Taylor, Michael C., Why No Rule of Law in Mexico? Explaining the Weakness of Mexico's Judicial Branch, 27 N.M.L. Rev. 141 (1997) New Mexico Law Review

The author of this article locates the absence of the rule of law in the institutional weakness of Mexico's judicial branch of government. The absence of the rule of law is a given and exemplified by the fact that Mexico's former president is hiding in exile amid accusations of theft and corruption. Most of the research for this article was completed while the author was working as a Fulbright Scholar in Mexico during 1995-1996. The article offers no solutions and serves only as a diagnosis of the many sources of a weak and ineffective judicial system.

Mexico inherited Spain's Roman law tradition when it gained independence and that tradition is the civil code, which is assumed to be an exhaustively complete code of rules, procedures, rights and duties. The civil code tradition favors certainty and certainty is believed to require legislation rather than judicial interpretation. One consequence of this approach is that the courts are not empowered or experienced in evaluating the constitutionality of legislation.

The author identifies four characteristics of constitutional reform to the judiciary since 1917, all of which have sought to weaken an already weak institution. The reforms have 1) undercut judicial prestige, 2) curtailed the autonomy of the Supreme Court, 3) required an adherence to overly rigid theories of law, and 4) they show a mistrust of the judiciary.

With the election of President Ernest Zedillo in 1994, Mexico adopted a large number of constitutional changes to the court system, but it remains to be seen whether any of these will result in a greater respect for and adherence to the rule of law. Like all his predecessors, President Zedillo began his reforms by dissolving the existing Supreme Court. The reforms implemented the following changes: 1) reduced the number of Supreme Court justices from twenty-one to eleven, 2) shrank the number of special courts from four to two, one for administrative and labor cases, the other for civil and penal cases, 3) changed the term of office from lifetime appointment to a single fifteen year term, 4) granted the Mexican Senate a confirmation process, 5) created an administrative body (council of the Federal Judiciary) to oversee administrative decisions, appointments, and disciplinary actions, and 6) empowered the Supreme Court to strike down unconstitutional legislation (acciones de inconstitucionalidad).

The acciones de inconstitucionalidad is the only procedure in the Mexican judicial system for seeking review of the constitutionality of legislation as a general matter. The amparo suit serves as a form of judicial review, but its utility is limited as will be described below. The new acciones procedure is also very limited as it must be commenced within thirty days of the enactment of the legislation at issue and the claim may be brought only by the Attorney General (who is appointed by the President that signed the law into existence) or by 33% of either house of Congress or 33% of a state legislature.

The amparo suit is the primary means by which government action against an individual can be contested. For example, in a criminal prosecution, the court is not empowered to review the constitutionality of the statute at issue. The amparo suit must be brought in special central courts, and a favorable outcome does not strike down the legislation, but instead grants the individual who brought the claim an exemption from the law. The author contends that the limitations in the amparo procedure and practice make it an ineffective tool for protecting human rights in Mexico.

Under Mexico's jurisprudence a Supreme Court decision does not become precedent until it consecutively decides five similar cases in the same way, voting with a supermajority of the justices (eight out of eleven). This tradition is based on an explicit decision to apply the observations of de Tocqueville, who in describing the United States' system wrote that a law does not become abolished until "under repeated blows, that it finally succumbs." A desire to emulate the United States' system led Mexican legislators and constitutionalists to adopt the "regal de cinco" or rule of five as the appropriate measure of "repeated judicial blows."

Vargas, Jorge A., Mexico's Legal Revolution: An Appraisal of Its Recent Constitutional Changes, , 25 Ga. J. Int'l & Comp. L. 497 (1996) The Georgia Journal of International and Comparative Law

Professor Vargas provides a brief analysis of the changes to the Mexico Constitution that were adopted during the period 1988-1995. These changes were adopted during the Presidency of Carlos Salinas de Gortari, who served 1988-1994 and in the first year of his successor, Ernest Zedillo.

Two features of the Mexico Constitution adopted in 1917 have made it a document that changes to fit the social realities advanced by the executive leadership. First, several articles reflect the adoption of "Social Law" intended to protect the rights of the farmers and peasants. Second, the Constitution is a "programmatic" document, which means it requires the President, who serves a single six year term, to advance a program of legislation that is often incorporated into the Constitution itself. Article 26 of the Constitution provides that "the State shall organize a system of democratic planning for the national development…" In contrast to the United States Constitution, this fundamental law of Mexico has been amended 350 times since 1917.

The author reviews ten changes to the Constitution 1) electoral questions, 2) agrarian reform, 3) state-church relations, 4) indigenous peoples, 5) human rights, 6) economic activities of the state, 7) sessions of the Federal congress, 8) criminal due process, 9) a new form of government of the Federal district (Mexico City) and, 10) reform of the Mexican Supreme Court. Three of these changes are of interest for the purposes of this paper: agrarian reform, indigenous peoples, and the Supreme Court.

The Revolution of 1910, which lead to the Constitution of 1917, was lead in large part by disenfranchised campesinos who sought land and status; in many respects they still await the fruits of their efforts. President Salinas' program sought to further implement Agrarian Reform whose ultimate goals are to increase food production, advance social justice, and increase foreign investment. He has sought to do so by increasing the legal rights of the campesinos to organize and own land, allow participation of corporations, and adopt Agrarian Tribunals whose jurisdiction is to resolve disputes over the ownership and use of land.

Although Mexico's population is made up of at least 56 ethnicities and the Mexican Constitution of 1917 lauded notions of equality, it did not provide for any specific protection to the minority and ethnic Indian communities until President Salinas' reforms were adopted. These reforms may have been prompted by the armed rebellion in Chiapas, which was carefully planned to coincide with the entering into force of the North American Free Trade Agreement (NAFTA). The Zapatistas published a document containing thirty-four specific "Demands and Engagements to Achieve a Dignified Peace in Chiapas." These demands included things like basic services of water, electricity, roads and sewers. But it also included protection of cultural heritage in the forms of language and traditions. At President Salinas' request the legislature amended the Constitution to provide for the protection and promotion of indigenous language, culture, customs resources, and specific forms of social organization.

In 1995 President Zedillo implemented significant change to the structure and operations of the Mexican Supreme Court. These Constitutional changes reduced the number of justices from twenty-six to eleven, the manner of appointment was altered to give the Mexican Senate greater power, its jurisdiction was broadened to include a limited process to test the "constitutionality" of legislation, and created a new administrative organ, the Council of the Federal Judiciary.

Wachs, Jonathan, Reviving the 1940 Cuban Constitution: Arguments for Social and Economic Rights in a Post-Castro Government, , 10 Am. U.J. Int'l L. & Pol'y 525 (1994) The American University Journal of International Law & Policy

In this Note and Comment, the author advocates the use of the 1940 Cuban Constitution as a basis for the post-Castro Constitutional framework. Interestingly, he cites arguments that Fidel Castro made before the communist revolution that the Batista regime was corrupt and should be removed because in part it had not met the obligations of the 1940 Constitution.

The author contends that the 1940 Constitution enshrined social and economic rights that the Cubans today wish to preserve: universal free health care and education. Although the Castro regime centralized control over society and sought to abolish private property, the rights to health care and education remain a part of the Fundamental Law Castro decreed in 1959 and 1976. In response to the termination of substantial subsidies from the Soviet Union, Castro chose to reform Cuba's Constitution in 1992. The 1992 changes permitted some minor economic rights in the form of limited property ownership.

The author makes three arguments for the preservation of the social and economic rights after Castro is gone. First, as a political matter, the Cuban people want to preserve these rights. He cites anecdotal evidence from the former socialist nations in Eastern Europe and some statistics from Cuba itself that indicate reductions in social benefits cause an increase in crime. Second, many international conventions including some to which Cuba is signatory recognize these social and economic rights. Third, as matter of economics, it seems that healthy, happy workers produce more goods.

Yamin, Alicia Ely and Garcia, Ma. Pilar Noriega, The Absence of the Rule of Law in Mexico: Diagnosis and Implications for a Mexican Transition to Democracy, 1999 21 Loy. L.A. Int'l & Comp. L.J. 46 (1999) Loyola of Los Angeles International & Comparative Law

In what eerily foreshadows the events in the United States since September 2001, the authors catalogue the growing injustices that exist in the Mexican criminal justice system, injustices that arise from the conversion of ordinary crime into a national security issue. The growth of crime in Mexico has been substantial and, interestingly, temporally follows the introduction of neo-liberal structural adjustment economic policies. As the numbers of people who live in absolute poverty as defined by the United Nations Development Program have increased, the rates of murder, robbery and ransom kidnapping have exploded. The authors contend that the government's response to increased crime has been to militarize the police and tolerate increasing abuses of human and civil rights at all levels of the criminal justice system. Their criticism is unequivocal and unrelenting.

The authors review four aspects of the Mexican criminal process that must change if Mexico is to accept the rule of law. First, the military's role should be eliminated and police power must be returned to the police. This, of course, assumes the police are not corrupt and in fact capable of enforcing the laws fairly and justly. Second, the courts must cease favoring forced confessions. The authors contend that the courts are active conspirators to encourage the use of torture in extracting confessions, and the use of torture, which is in violation of Mexican and international law, will stop only if the courts stop turning a blind eye to its use. Third, the authors advocate liberalization of the Law of Amparo, which allows a defendant to attack the constitutionality of the charges brought against him or the process to which he has been subjected. Fourth, the courts must become de-politicized and subject to prosecution for abuses.

Zamora, Stephen, Symposium: International Law in the Americas: Rethinking National Sovereignty in an Age of Regional Integration: Articles & Essays: Allocating Legislative Competence in the Americas: The Early Experience Under NAFTA and the Challenge of Hemispheric Integration, 19 Hous. J. Int'l L 615, (1997) Houston Journal of International Law

Zamora describes the evolution of governance in Mexico. His argument begins with the premise that as economic integration reduces the state's opportunity to regulate daily life, it transfers those opportunities to supra national agencies like NAFTA. He contends that increased economic integration distributes legislative competence more broadly, dispersing authority once monopolized at the national level both above, to supranational agencies, and below, to state, provincial, and local actors. For this reason, globalization means that decisions at the international level can have immediate local implications.

The challenge that is created by this phenomenon is how we mediate the conflict between the desire in democratic societies for local legislative power and the need of authorities at the national and international levels to avoid the subversion of legitimate goals that can only be achieved through broadly applicable legal rules.

He notes the traditional Latin American resistance to U. S. influence and the failure of the Law and Development school in the 1960's to have much impact in Latin America.

The Calvo Doctrine has played a significant role in Latin American resistance to loss of sovereignty. It was named after an Argentine jurist named Carlos Calvo and first espoused on 1868. It has two principles, first, the equality of treatment between foreign citizens and citizens of the host country, which is intended to reduce favoritism toward foreign citizens. Second, the Calvo Doctrine requires foreign investors to submit to the national laws of the host country and prohibits the intervention of the foreign citizen's home law of the intervention, diplomatic or otherwise, of the foreign state in protecting the foreign interests. For example the Mexico constitution still contains a Calvo clause requiring foreigners to submit to national law.

The author posits the question whether NAFTA will spell the end of the Calvo Doctrine. He notes that it is at odds with a Covenant of the League of Nations, which gave a de facto recognition of the right of intervention, especially as it relates to "regional understandings like the Monroe Doctrine."

The author contends that Mexico's central government has become weakened as it moves to a privatized market economy. He describes a NAFTA arbitration panel decision that exemplifies this weaken sovereignty. U.S. steel suppliers asked the panel to declare the Mexico Trade Ministry's duty on certain steel imports to be in violation of NAFTA. The 5 member panel consisted of three U. S. citizens, and it declared that the duty was unconstitutional under Mexican law and therefore invalid. It appears that the Mexican Trade Ministry accepted this result.

Lastly, the author notes that the international financial agencies, World Bank, IDB and others have begun to condition loans on the adoption of legal reform. This is one more example of the nation-state's loss of control to a supranational entity.

BIBLIOGRAPHY

Anenson, T. Leigh, For Whom the Bell Tolls ... Judicial Selection by Election in Latin America, 4 Sw. J. of L. & Trade Am. 261 (1997) Southwestern Journal of Law and Trade in the Americas

Dakolias, Maria, A Strategy for Judicial Reform: The Experience in Latin America, , 36 Va. J. Int'l L. 167 (1995) Virginia Journal of International Law

Dannenmaier, Eric, SUSTAINABLE DEVELOPMENT SYMPOSIUM: Democracy in Development: Toward a Legal Framework for the Americas, 11 Tul. Envtl. L.J. 1 (1997) Tulane Environmental Law Journal

Garcia, Felipe Saez, The Nature of Judicial Reform in Latin America and Some Strategic Considerations, 13 Am. U. Int'l L. Rev. 1267 (1998) American University International Law Review

Gesell, Jeffrey N., Customary Indigenous Law in the Mexican Juridical System, 26 Ga. J. Int'l & Comp. L. 643 (1997) The Georgia Journal of International and Comparative Law

Kimerling, Judith, International Standards in Ecuador's Amazon Oil Fields: The Privatization of Environmental Law, 26 Colum. J. Envtl. L. 289 (2001) Columbia Journal of Environmental Law

Knox, Michael, Continuing Evolution of the Costa Rican Judiciary , 32 Cal. W. Int'l L.J. 133 (2001) California Western International Law Journal

Linarelli, John, Anglo-American Jurisprudence and Latin America, 20 Fordham Int'l L.J. 50 (1996) Fordham International Law Journal

Morales, Isidro, NAFTA: The Governance of Economic Openness, 565 Annals 35 (1999) The Annals of The American Academy of Political and Social Science

Samway, Michael A., Access to Justice: A Study of Legal Assistance Programs for the Poor in Santiago, Chile, 6 Duke J. Comp. & Int'l L. 347 (1996) Duke Journal of Comparative & International Law

Sheppard, Hale E., Overcoming Apathetic Internationalism to Generate Hemispheric Benefits: Analysis of and Arguments for Recent Secured Transactions Laws in Mexico, 10 J. Transnat'l L. & Pol'y 133 (2001) Florida State University Journal of Transnational Law & Policy

Taylor, Michael C., Why No Rule of Law in Mexico? Explaining the Weakness of Mexico's Judicial Branch, 27 N.M.L. Rev. 141 (1997) New Mexico Law Review

Vargas, Jorge A., Mexico's Legal Revolution: An Appraisal of Its Recent Constitutional Changes, 25 Ga. J. Int'l & Comp. L. 497 (1996) The Georgia Journal of International and Comparative Law

Wachs, Jonathan, Reviving the 1940 Cuban Constitution: Arguments for Social and Economic Rights in a Post-Castro Government, 10 Am. U.J. Int'l L. & Pol'y 525 (1994) The American University Journal of International Law & Policy

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