Argentina – Another wig falls

The removal of a fifth Supreme Court judge threatens the separation of powers:

SHORTLY after assuming Argentina’s presidency, Carlos Menem pushed through one of the brashest court-packing moves in recent memory. In a brief session in April 1990, his Congress added four more seats to the five-member Supreme Court.  Since Néstor Kirchner became president two years ago, he has dedicated himself to ridding the government of Mr Menem’s taint, particularly in the judiciary. Three justices from the bloc have resigned, while a fourth was forcibly discharged in December 2003. The Senate finally removed its last, Antonio Boggiano, from the court on September 28th after finding him guilty of arbitrary, biased and inconsistent rulings.

Along with the recent voluntary retirement of another justice, Mr Boggiano’s departure has created two more vacancies on the court in addition to the four that Mr Kirchner has already filled. Although the president has won widespread praise for making the nomination process more transparent and selecting eminent and independent judges, the possibility of his naming two-thirds of the country’s highest court hardly bodes well for the separation of powers.

Review of Brazil’s Judiciary

After the Constitution of 1988, Brazil enacted judicial reform that separated the three powers: executive, legislative, and judiciary and created checks and balances between the three.  Judicial reform was headed by a committee that targeted several areas of the Brazilian judicial system to increase access, efficiency, and judiciary independence.

Access

Judicial reform attempted to increase access to individual plaintiffs by allowing states to open small claims courts, presuming innocence until declared guilty by the courts, and not requiring the plaintiff to pay defense attorney fees in the event of an unsuccessful trial.  The types of the cases that could be argued to the Supreme Federal Tribunal were augmented and this Supreme Court had no option but to hear each case.

Inertia

One of the biggest objectives of Brazil’s Judicial Reform Committee was to create a system whereby judges judged based on the law and not by any other measure.  Superior Court justices were given life-long appointments by the President and an impeachment process headed by the legislature.  And these justices were solely responsible for the removal of lower court justices, thus attempting to insulate lower courts from political influence as well.  Finally, the Brazilian Supreme Court controls the court system’s budget.  Therefore, Brazil attempted to protect itself from people that were “guarding their vested interests” by creating an intensely autonomous judiciary arm. 

Independence

Brazil’s judiciary’s independence is a catch 22.  Brazil has the most politically independent judicial branch in Latin America when graded on a basis of rulings in relation to sensitive issues both politically and to the other branches of government.  However, with great power comes great responsibility and the autonomy has resulted in abuses of power, mainly in the forms of overly inflated salaries and other forms of corruption.  Because the judicial system is so independent in Brazil, it severely lacks accountability.

Delays

Brazil really lacks in terms of speed and processing of cases.  The country is infamous for its backlog of cases and insufficient quantity of judges, a result of tough qualifying exams and low pay.  It is not uncommon for cases to be dismissed in Brazil due to being too old.  Corruption is not infrequent when judges purposefully delay cases so that they are dismissed.

Corruption

As stated above, judicial corruption has come in the various forms, namely compensation.  Because the Supreme Court controls its own budget, it is no surprise that salaries are extraordinarily high.  Other forms of corruption include delaying cases to lead to their eventual dismissal.  Another form of corruption also stemming from the autonomy of the judicial branch is nepotism.  Many judges elect family members, friends, etc. to reside on the bench despite being poorly qualified to do so.  Of course, this severely weakens the quality and efficiency of the judicial system in Brazil, with judges poorly capable of accurately judging the law.  Hence, corruption stems from the independence of this branch of government, or in other words, the lack of accountability of other branches of government on the judicial system in Brazil.

Independence of the Judiciary in Costa Rica

here’s a link to an exert from the 2007 Global Corruption Report. It has a great section about Costa Rica’s judicial independence on page 190: http://books.google.com/books?id=A8S6Yd047LcC&pg=PA190&lpg=PA190&dq=judiciary+in+costa+rica&source=web&ots=LQ6dG-9X8s&sig=5IEgCcg45EO0f4TpnCqZo0AeP9o

As you might expect, Costa Rica again ranks highly in Latin America for judicial independence. However, you might be interested in why…

In the constitution, all modifications to the judiciary must be passed by a 2/3rds legislative super majority. For instance, judges cannot be suspended without this super majority. Case loads for judges and prosecutors are low in Costa Rica compared with other Latin American countries.  However, perhaps what is more important is what the legislature cannot vote upon. At least 6% of the government’s budget is constitutionally guaranteed to the judiciary. Therefore the judicary’s budget is not subject to many outside sources of political influence. There is also a constitutionally created, separate branch of the judiciary which hears corruption cases exclusively. This branch is accountable only to the supreme court and is mandated to hear all corruption cases from felonies to simple tax evasion charges. All of these qualities create a rigid structure unfriendly to the undue influence by the legislature and the presidency or corrupt interests.

On the broader topic of corruption Costa Rica rank well by Transparency International’s standards. This is due to a wide variety of structural factors that lead to few entrenched corrupt interests in the judiciary (some of which are discussed in the preceeding paragraph). However, the Costa Rican political structure has also been flexible enough make reforms in problem areas. Importantly since the 1990’s Costa Rica has created at digital case log. This has greatly increased transparency and allowed for public scrutiny, making corruption more difficult.

If your interested in knowing more check out the link: (the last link I posted didn’t work perfectly for some people so if you have trouble you can google “Global Corruption Report 2007 Costa Rica” and the 7th link to pop up should be a complete PDF of the report published by Transparency International).

Reviving Chile’s Judiciary Post-Dictatorship

According to the Ratliff article on judicial reform, Chile has the most respected judicial system in Latin America, “A recent rating of judicial systems of the world that focused on efficiency and the opinions of users found the Mexican and all Latin American judicial systems except Chile’s in the bottom 20 percent globally.” Chile’s judiciary may be relatively efficient in comparison to its neighbors, but this was not always the case. Democratic consolidation from authoritarian rule has been a very gradual process, and can be seen by the way in which the Chilean courts have handled the military regime following the dictatorship. With the fall of the Pinochet, Chile fully implemented its 1980 constitution, which provided for an independent judiciary. However, the courts, still dominated by appointees of the Pinochet regime, were unwilling to prosecute for human rights violations by the military that occurred during the dictatorship. In 1990, the Chilean government set up an independent inquiry into those “disappeared” during the dictatorship, however it was not until the 1998 arrest of Pinochet in London, where it was ruled that he lacked immunity under international law, that Chileans judges grew the confidence to seek justice. It has only been in the past few years that the families of those tortured, killed, and “disappeared” during the military regime have begun to see justice. Even Pinochet, who was extradited to Spain while on a trip to London, was to be subjected to the law. Unfortunately, he died before the courts were able to hold him accountable.

The first article, “Slaking a Thirst for Justice” discuses the peace that many of these families are finding as they begin to learn what occurred to their loved ones and to seek justice. “In Chile, some 3,000 people were killed or “disappeared” at the hands of Pinochet’s regime. But the dictatorship’s amnesty for its own crimes outlived it.” As of April of last year when the article was written, 148 people had been convicted of human rights violations during the dictatorship, and over 400 more, nearly all from the armed forces, had been indicted or were under investigation. The second article, entitled “Prosecuting Pinochet in Spain” provides details on Pinoche’s extradition to Spain, the charges he faced, and the international laws that allowed Spain to intervene and for him to be charged.

Sources:
“Slaking a Thirst for Justice.” The Economist, April 12, 2007
http://www.economist.com/research/articlesBySubject/displaystory.cfm?subjectid=548600&story_id=9017531

Wilson, Richard. “Prosecuting Pinochet in Spain” Washington College of Law http://www.wcl.american.edu/hrbrief/v6i3/pinochet.htm

Venezuela: Judicial Independence Under Siege

Human Rights Watch issued a 24-page report in 2004 titled, “Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela.” It highlights how the Venezuelan government compromised the autonomy of the country’s judiciary with a court-packing law that amounted to a political takeover of the Supreme Court.

The law made judges more vulnerable to political persecution and was an effort to ensure that legal controversies surrounding the presidential recall referendum would be resolved in favor of Chávez. The new law expanded the Supreme Court from 20 to 32 members and gave a majority of seats on the Supreme Court to Chávez’s governing coalition. The law also gave the governing coalition the power to nullify existing judges’ appointments to the bench. The threat to the judiciary’s independence in 2004 was particularly disconcerting given the volatile political situation surrounding the recall referendum where the country’s National Electoral Council disqualified hundreds of thousands of signatures on a petition to authorize the referendum.

The report is interesting because it highlights how Chávez and his governing coalition attempted to use the judiciary as an extension of its political agenda and a means to retain control rather than allow it to serve as an independent check on executive and legislative power. Human Rights Watch recommended that the OAS monitor the situation and analyze threats to Venezuela’s democratic political institutional process.

http://hrw.org/english/docs/2004/06/17/venezu8855.htm

Morales’ fight with the Bolivian Judicial Branch

The fight between Evo Morales and the Bolivian Judicial Branch began when the country’s Constitutional Court dismissed from the Supreme Court four judges who Morales had named by decree to temporary positions on December 30, 2006. But what are the roots of the problem? These four judges were preparing to bring ex-president Gonzalo Sanchez de Lozada to justice for his role in the killing of 18 people during the mass movements in 2003 which eventually forced him to resign. In response to the dismissal of these four Supreme Court justices, Evo Morales issued a formal complaint against four members of the constitutional court for incompetence and obstruction of justice.

As a result, right-wing reactionaries in Bolivia strongly attacked Morales and his government. Jorge Tuto Quiroga, the leader of Podemos, the largest neoliberal party in Bolivia, publicly asked that Morales free himself from the tutelage of Venezuelan president Hugo Chavez and respect Bolivian sovereignty and democracy. According to the right-wing, Morales and his MAS government is trying carry out some form of “judicial coup” that involves the hanging of the Judicial Branch as one more link in the chain on the way towards taking absolute power and establishing a totalitarian government.

On the other hand, left-wing would ask “Is the Judicial Branch really independent? And who is it independent from? Each one of the Justices on the Supreme Court was named by one of the previous right-wing governments which never truly had popular support in the first place, much less represented the peasant, worker, and indigenous majority of Bolivia. Why then should Evo Morales, who heads the first government to really have been elected with the majority support of the population not have the right to name members of the Supreme Court?”

http://www.socialistworld.net/eng/2007/06/18bolivia.html

Nicaragua’s Judiciary: In Need of Reform

According to a report by Freedom house, Nicaragua’s judicial system can be criticized on several points. First, the judiciary is dominated by Sandinista appointees, who are susceptible to political influence and corruption. Second, it is plagued by delayed trials and a back-up of cases. Third, due the dominant influence of the two main political parties, the FSLN and PLC, on the judiciary, it is more difficult for opposition parties to get onto the ballot.

One example of this took place during the 2000 elections, when an opposition party which represented indigenous groups, the YATAMA, was not allowed to run in the election. There were two judicial bodies involved in the decision; the Consejo Supremo Electoral (CSE) is an executive body made up of representatives from the two major parties, the FSLN and PLC, and certifies the eligibility of parties to run in elections, and the Supreme Court of Nicaragua. The CSE denied th YATAMA the right to run in the elections and in response to the appeal which was brought before it, the Supreme Court ruled that it had no jurisdiction and dismissed the case.

According to a report by the UN University for Peace, the Inter-American Court of Human Rights, a body of the OAS, found that Nicaragua was in violation of articles 8 and 25 of the American Convention. Article 8 provides for the right to a hearing by a competent, independent, and impartial body. The CSE was determined to be neither independent for impartial due to the fact that it is part of the executive branch and dominated by political parties. Further, the CSE denied the YATAMA a fair trial because they did not give them the opportunity to review the decision. Article 25 provides for recourse in the event of a violation. According to Nicaraguan law, recourse is not provided for electoral matters, nor for the resolutions of the CSE. It was based on these laws that the Supreme Court ruled that it had no jurisdiction; however, those laws were found to be in violation of the American Convention by the University for Peace report.

It is acknowledged that the judiciary system in Nicaragua is in need of reform, and there have been some investigations into possible reforms, but there have been no recent reforms to address these issues.

Sources:

http://www.freedomhouse.org/inc/content/pubs/fiw/inc_country_detail.cfm?year=2007&country=7242&pf

http://www.upeace.org/PDF/amicus%20final%20draft%20_2_.pdf

Reforming the Colombian Court System

The 1991 Constitutional Reform in Colombia brought some changes to the Colombian judicial system, however there are still many reforms that can be made to the courts, some of which need to be made to systems created by the Constitutional Reform itself.  Maurice Kugler and Howard Rosenthal evaluate the Colombian court system in their article entitled “Checks and Balances:  An Assessment of the Institutional Separation of Political Powers in Colombia.”  They make the following observations about the current court system:  

The Constitutional Court, introduced in 1991, has reduced the possibility of concealed agreements in lawmaking between the executive and legislative branches and the declaration for states of emergency by the Executive.  The Court is also responsible for finding constitutional mistakes in the enactment of laws.  The creation of the Constitutional Court has produced some conflict in the judicial system, especially since it has repealed many decisions made by the other high courts. 

Magistrates in the higher courts have similar incentives as politicians. Magistrates are chosen by peers and the Executive for limited terms. They have an 8 year, non-renewable term, after which they are not able to hold public office for at least a year.  The authors argue that the current system makes high court judges “prone to render short-term populist decisions.”  Their suggestion is to make the appointments life terms or to make them renewable. 

There is a tendency for courts to very quickly override the executive and legislative needs. The authors suggest that a supermajority of court judges must be required in order to reject legislation so that support for a decision would require a higher number of supporters than what currently exists.  

There are 4 High Courts:  Supreme Court of Justice, Superior Judicial Council, Council of State, Constitutional Court, which have different responsibilities. There currently is no hierarchical structure in the Colombian court system (no one court is considered to be the highest) nor is there a clear division of labor among them. There is also no rule to resolve conflict among the higher courts’ decisions. The authors suggest that one court (the Constitutional Court) be the final decision maker in order to prevent “gridlock.” 

These are only some of the many arguments Kugler and Rosenthal make for why further reforms should be made to the judicial system.  Their argument for a hierarchical system is valid in that it would appease some of the conflicts between different courts and would ameliorate some of the delays.   However, requiring a supermajority is a more questionable suggestion because it would return power to the legislature.