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Improving justice in Latin America
Two decades of experience
Traditionally, Latin American judiciaries were notable for their inaccessibility
to a majority of citizens. The poor and those suffering discrimination
for reasons of ethnicity, gender and the like were most affected. What
reform has been initiated and what can be done to enhance the main strategic
approaches for increasing access to justice?
Barriers to access were of several types:
- physical - courts were located in urban areas, and in zones where
the poor did not live or work
- financial - even if justice was 'free', and it frequently was not,
there were costs for counsel, documents, 'grease' money, bribes, transportation
and users' time
- cultural - for many citizens, the formal justice system was foreign
to them both in terms of concepts and language
- attitudinal - judicial prejudice, made worse by citizen distrust,
encouraged avoidance.
In the post-1980 regional reform movement, access was not an initial
goal of local or foreign participants. Yet following its incorporation,
reformers adopted three strategic approaches (see chart).
The approaches take a progressively broader view of the problem of access
and an increasingly negative perspective of the potential benefits to
the poor of justice as usual. Impact evaluations have not been done consistently,
and are constrained by the limited scope or experimental nature of most
activities. Research into court uses and users in Brazil, Argentina, Mexico,
Ecuador and Peru suggests that increased efficiency benefits traditional
rather than new clients, while specialised services are more effective
in reaching historically excluded groups.
However, all three approaches have shortcomings. On the one hand, access
to a biased or ineffectual judiciary may not resolve problems (claims
are not recognised, rulings are not enforced, or they undergo endless
appeals from better-off opponents). On the other hand, even the most highly
subsidised, pro-poor systems reach only a minority of potential users.
Class action and diffuse interest suits, which can represent large numbers
of individuals in a single court case, have been criticised for their
limited benefits, incomplete enforcement, and tendency to focus on issues
(environmental law, consumer protection) somewhat removed from the day-to-day
concerns of the poor.
In order to expand access to justice (and not only courts), the approaches
could be modified to enhance their impact:
- While efficiency is important, the poor (and other users) might benefit
more from qualitative improvements, such as attacks on biases, corruption,
and a non-service orientation.
- Regarding special services and collective litigation, more information
is needed to ensure the most critical conflicts and legal issues affecting
the targeted groups are addressed properly.
- Reformers seem torn between getting the poor to the courts and using
the judiciary to reverse long-standing inequalities in other areas.
Attempting social revolution by judicial order is historically unproven
and can divert attention from potentially more effective political and
administrative remedies.
Courts are important in containing conflicts and enforcing the law. Alternative
dispute resolution can resolve conflicts more conveniently and practically,
but has little impact on juridical security. Limited access hampers those
functions, but given the many needs of marginalised groups, costs, benefits
and alternatives should also be considered in defining the role expanded
justice services will play in meeting them.
Linn Hammergren
World Bank I-8805
1818 H St NW
Washington DC 20433
F +1 202 522 3134
lhammergren@worldbank.org
See also
'The Juicio Ejecutivo Mercantil in Mexico's Federal District Courts',
The World Bank, by Linn Hammergren, Ana Laura Magaloni, Layda Negrete,
Alfredo Ramirez and Rosario Tellez, 2002 (forthcoming)
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