1

The Judiciary & PMP

Mariana SousaUniversity of Notre Dame

Prepared for IDBFebruary 28th – March 2nd, 2005

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Outline of the Presentation Potential roles for the Judiciary in the PMP &

its conditions Judicial Independence & its elements Cross-Country assessment of J.I. using 3

instruments of analysis Implications for PMP Examples Limitations of Assessment Presented Question, Comments & Suggestions

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Potential Roles for Jud. in the PMP Facilitator of political transactions; enforcer

of inter-temporal agreements (Landes & Posner 1975).

Veto player: increase durability of policies (Tsebelis 2002).

Policy player: shape content of policies according to their own preferences.

Quality inspector: ensure effective application of other state policy reforms (e.g., privatization, fiscal, pension).

Alternative channel for societal representation regarding certain policies.

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Conditions for Jud. to fulfill its roles

Political autonomy & no collusion with certain groups to favor outcomes.

Act in good faith & be accountable. Rulings must be enforced; that is,

they must be respected.

“Responsible” Judicial Independence

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Definition & Dimensions of “Responsible” J.I.

Horizontal Accountability: independence from private actors, partisan interests & other government branches (O’Donnell).

Societal Accountability: to avoid arbitrary action (Domingo; Hammergren).

Caveat: de jure vs. de facto J.I.

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Elements tending to support J.I. (I)

Budgetary autonomy: amount allocated & how to allocate within the Judiciary.

Uniform, transparent, & merit-based appointment system.

Stable terms: tenure of judges, lifetime preferred, longer than governmental cycles.

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Elements tending to support J.I. (II)

Promotion procedure based on evaluation of performance & also not purely in hands of judicial hierarchy.

Adequate salaries & retirement benefits.

Broader reach of judicial review powers.

Good administrative capacity & training.

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Cross-country Assessment of J.I.(3 instruments of analysis)

Rules (formal or actual) regarding the before-mentioned elements of J.I.

Cross-national quantitative indicators.

Secondary Literature: reports (e.g., Popkin, Hammergren, Domingo, Dakolias) on real experience of judiciaries in LACs.

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Budgetary Autonomy (I)

Country

Who elaborates

the Judicial budget?

Who approves the

Judicial budget?

Who allocates the Judicial

budget to lower courts?

Who supervises the execution of

the budget?

Is there an amount

stipulated by law?

Argentina Executive Congress

Judicial Council in theory, but

Supreme Court in practice

Each "fuero" by delegation of

Supreme Court

No; but with self-funding

mechanisms

Chile Executive CongressSupreme Court through CAPJ

Contraloria General de la Republica No

Colombia

Superior Council of Judicature

Executive & Congress

Superior Council of Judicature

Superior Council of Judicature No

Costa RicaSupreme

CourtSupreme

Court Supreme CourtConsejo Superior del Poder Judicial

Yes; at least 6% of national budget

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Country

Who elaborates the Judicial

budget?

Who approves the Judicial

budget?

Who allocates the Judicial

budget to lower courts?

Who supervises the execution of

the budget?

Is there an amount

stipulated by law?

Dominican Republic Supreme Court

Executive & Congress Supreme Court

Executive through

ONAPRES

Yes; at least 12% of nat.

budget

El Salvador Supreme Court Supreme Court Supreme Court

Direccion de Administracion linked to S.C.

Yes; at least 6% of national

budget

Guatemala Supreme Court Supreme Court Supreme Court

Contraloria General de

CuentasYes; at least 2% of nat. budget

HondurasSecretaria de

Finanzas Congress Supreme Court Supreme CourtYes; at least 3%

of nat budget

Panama Congress Congress

Secretaria Administrativa

del Organo Judicial linked

to S.C.

Contraloria General de la

Nacion (linked to Executive)

Yes; at least 2% of nat. budget

Paraguay Executive Executive Executive Executive No

Uruguay Supreme Court Executive Supreme Court Supreme Court No

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Budgetary Autonomy (II)

Budget-Ratio (%) Justice Sector as part of Public Sector Budget (2000)

3.382.94

2.82.13

1.551.52

1.010.870.860.8

Costa RicaNicaraguaColombia

Brazil*Argentina*

Dom. RepublicMexico*

ChilePeru

Ecuador

*Statistics covers only Federal Court System. Source: WB, Legal & Judicial Reform Practice Group.

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Appointment SystemCountry Supreme Court Second Tier Judges First Tier Judges

  Nomination Appointment Nomination Appointment Nomination Appointment

ArgentinaProposed by Executive

President with Senate's approval

Selection by Judicial Council &

examination; prepare lists of 3

President with Senate's approval

Selection by Judicial Council & examination; prepare lists of 3

President with Senate's approval

BrazilProposed by Executive

President with Senate's approval

Federal: nominated by President.

States: promoted according to

tenure/merit. Both have 1/5 composed

of lawyers or prosecutors

nominated by Executive

ExecutivePublic

examinationExecutive

BoliviaJudicial Council

provides a list

Congress approves by 2/3

majority voteJudicial Council

2/3 vote of Supreme Court

Judicial Council2/3 vote of Superior

District Courts

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Country Supreme Court Second Tier Judges First Tier Judges

  Nomination Appointment Nomination Appointment Nomination Appointment

ChileSupreme Court

prepares a list of 5 candidates

Minister of Justice designates &

Senate ratifies by 2/3 majority vote

After a "contest", Supreme Court

judges elaborate a list for specific

judicial positions.

Ministry of Justice

Recruitment through Judicial

Academy; lists of 3 candidates

prepared by the immediate superior

hierarchical tribunal

Ministry of Justice

Colombia

Lists presented by President, the Supreme Court of Justice, &

Superior Council of the State. The lists

are also reviewed by

Superior Council of Judicature

Senate

Meritocratic admission system regulated by the Superior Council of Judicature &

confirmed by the National Registry

of Eligible Candidates

Judicial Council

Meritocratic admission system regulated by the Superior Council of Judicature &

confirmed by the National Registry

of Eligible Candidates

Judicial Council

Costa RicaLegislative Assembly

Superior Council evaluates and

elaborates list of candidates

Supreme Court

Superior Council evaluates and

elaborates list of candidates

Superior Council

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Country Supreme Court Second Tier Judges First Tier Judges

  Nomination Appointment Nomination Appointment Nomination Appointment

Dominican Republic

Anyone can propose;

Judicial Council screens

Judicial CouncilEscuela Nacional de la Judicatura

Supreme CourtEscuela Nacional de la Judicatura

Supreme Court

EcuadorAlready

members of Supreme Court

Full Supreme Court

Judicial Council Supreme Court Judicial CouncilSupreme Court or Superior Courts of

each province

El Salvador

Judicial Council (half of the list

come from bar's association election)

Legislature by 2/3 majority vote

Judicial Council Supreme Court Judicial Council Supreme Court

Guatemala

Postulation commission

prepares a list of candidates

Legislature

Judicial Council convokes

competition; Training Unit

evaluates; those who pass are

eligible

Supreme Court

Judicial Council convokes

competition; Training Unit

evaluates; those who pass are

eligible

Supreme Court

HondurasNominating

board prepares list

Legislature Supreme Court Supreme Court Supreme Court Supreme Court

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Country Supreme Court Second Tier Judges First Tier Judges

  Nomination Appointment Nomination Appointment Nomination Appointment

Mexico ExecutivePresident with

Senate's approval

Council of the Federal

Judicature; questionaires; evaluation & examinations

Council of the Federal Judicature

Council of the Federal Judicature;

questionaires; evaluation & examinations

Council of the Federal Judicature

Nicaragua

Proposed by President & Deputies of Assembly in consultation

with civil associations

National Assembly Supreme Court Supreme Court

Panama President Legislature Public ContestImmediate superior in judicial hierarchy

Public ContestImmediate

superior in judicial hierarchy

ParaguayJudicial Council provides a list of candidates

Senate Judicial Council Supreme Court Judicial Council Supreme Court

PeruPublic Contest & Evaluation

Judicial CouncilPublic Contest &

EvaluationJudicial Council

Public Contest & Evaluation

Judicial Council

UruguayGeneral Assembly with 2/3 majority

vote

Supreme Court with Senate's approval

Supreme Court

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Judicial TermsCountry Supreme Court Second Tier Judges First Tier Judges

Argentina Lifetime Lifetime Lifetime

Brazil Lifetime Lifetime Lifetime

Bolivia 10 years without renewalLifetime if abiding by "Sistema

de Carrera Judicial"Lifetime if abiding by "Sistema

de Carrera Judicial"

ChileWith appropriate behavior they can remain until 75 years-old

With appropriate behavior they can remain until 75 years-old

With appropriate behavior they can remain until 75 years-old

Colombia 8 yearsWith appropriate behavior &

good evaluation they can remain until obligatory retirement age

With appropriate behavior & good evaluation they can remain until obligatory retirement age

Costa Rica

8 years; can be re-elected for equal periods unless 2/3 of the

Legislative Assembly votes against it

Lifetime Lifetime

Dominican RepublicLiftetime with appropriate disciplinary behavior until obligatory retirement age

Liftetime with appropriate disciplinary behavior until obligatory retirement age

Liftetime with appropriate disciplinary behavior until obligatory retirement age

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Country Supreme Court Second Tier Judges First Tier Judges

EcuadorLiftetime with appropriate

disciplinary behavior Liftetime with appropriate disciplinary

behavior Liftetime with appropriate disciplinary

behavior

El SalvadorLiftetime with appropriate

disciplinary behavior Liftetime with appropriate disciplinary

behavior Liftetime with appropriate disciplinary

behavior

Guatemala 5 years with possibility of renewal 5 years with possibility of renewal

Honduras

In theory it should be lifetime, but it depends on the willingness of the

President of the S.C.considering the political affiliation of judges

In theory it should be lifetime, but it depends on the willingness of the President

of the S.C.considering the political affiliation of judges

Mexico 6 years 6 years

Nicaragua 5 years & may be re-elected

Panama

Although technically judges are appointed for 10 years, in

practice, they have lifelong terms

Although technically judges are appointed for 10 years, in practice, they

have lifelong terms

Although technically judges are appointed for 10 years, in practice, they have lifelong

terms

Paraguay Lifetime 5 years 5 years

PeruConfirmation & ratification of

judges occur every 7 years after review of info

Confirmation & ratification of judges occur every 7 years after review of info

Confirmation & ratification of judges occur every 7 years after review of info

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Promotion & Removal Procedure

Country Promotion Removal

Argentina

Candidates' judicial experience takes precedence over private practice or academia. Judicial Council

does not have periodic evaluation of judicial performance.

Supreme Court judges by impeachment; lower Court judges are removed when found guilty of crimes by a

jury.

Brazil According to tenure & merit

BoliviaVia meritocratic contests & exams as well as

educational programs in the Instituto de la Judicatura

Lower judges are removed according to dispositions of the Ley del Consejo de Judicatura; S.C. judges by special

law

ChileAfter a public contest with grading system; there

are no automatic promotions

Via Transfer Trial, Political Trial, lack of good behavior required by Constitution & low grades. S.C. judges are

only subject to Political Trial

Colombia Competition of meritsPoor disciplinary conduct or obligatory retirement age for S.C. judges. Lower Court judges can be removed by low

evaluation by the Superior Council of Judicature

Costa RicaCombination of examinations & evaluation of

judges' experienceOnly the Superior Council & Supreme Court have the

power to fire or demote a judge

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Country Promotion Removal

Dominican RepublicRegulated by Supreme Court; contest among

lower court judges

S.C. judges cannot be removed unless found guilty of poor disciplinary conduct by peers of S.C. Lower court judges can

be removed by S.C. if poor disciplinary conduct

Ecuador Combination of merit evaluation & experience

Judges cannot be removed for arbitrary reasons. They can be warned, fined, suspended, or discharged from employment

duties by the Human Resources Commission of Judicial Council. Also, the S.C. can remove judges for misconduct or serious breaches of duty or absence for more than 8 days with

hearing by Public Prosecutor

El Salvador

In theory, it should follow the meritocratic requirements of Ley de la Carrera Judicial; in practice, the S.C. has designated discretionary

promotions without the appraisal of the Judicial Council

Judges can be removed by S.C. with recommendation by Judicial Council; no law regulates the process

Guatemala

Traditionally, there have been no objective criteria for promotion; political appointments has been common. The Ley de la Carrera Judicial has recently established new meritocratic rules for

promotion.

Traditionally the Supreme Court has charged of removing judges without clear criteria. The Ley de la Carrera Judicial

has recently established new rules for removal.

HondurasDepends on the President of the S.C. by

delegation by the rest of the members of the Court

Despite the requirements of the Ley de la Carrera Judicial, in practice, the President of the S.C. can remove judges depending

on their political affiliations

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Country Promotion Removal

Mexico Based on contest & evaluation of meritsJudicial Council can remove judges in the case of a

crime or second offense

NicaraguaThe full court of the S.C. can remove judges with justified cause & proceedings established by law

Panama

Although the Judicial Code states that promotion would take place by evaluation of merit & seniority

of immediately hierarchical inferior judges, in practice, promotions do not occur since all of the

vacant posts are filled via public examination

Legislature can remove S.C. judges for reasons stated in law. Lower court judges can be removed by

hierarchically superior judges for reasons stated in law

ParaguayThere are no dispositions that allow for immediate promotion; if there is a vacancy, the selection rules

are to be followed

Judges cannot be removed while exercising their 5 year terms. S.C. judges cannot be removed until obligatory

retirement age of 75.

PeruThere are no dispositions that allow for immediate promotion; if there is a vacancy, the selection rules

are to be followed

After an accusation, the Magistrate Council (through its permanent commission of disciplinary proceedings)

begins a formal inquiry for removal of judges. It is the Council in full session who decides the case

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Remuneration (I)

Annual Salary of Supreme Court Judges in PPPD (2000)

408,839298,317

209,920179,738172,415

142,745122,238

97,438

Nicaragua

Colombia

Argentina

Ecuador

Brazil

Chile

Peru

Costa Rica

Source: WB, Legal & Judicial Reform Practice Group.

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Remuneration (II)

Annual Salary of Second Instance Judges in PPPD (2000)

163,564155,605153,206

146,944111,308

94,00067,525

43,955

Colombia

Brazil

Nicaragua

Argentina

Chile

Ecuador

Costa Rica

Peru

Source: WB, Legal & Judicial Reform Practice Group.

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Remuneration (III)

Annual Salary of First Instance Judges in PPPD (2000)

147,825115,456

85,53384,783

65,21451,318

33,168

BrazilArgentin

ColombiaChile

EcuadorCostaPeru

Source: WB, Legal & Judicial Reform Practice Group.

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Remuneration (IV)

Judges Compression Rate (2000)

11.33.693.49

2.761.91.821.68

1.17

NicaraguaPeru

ColombiaEcuador

Costa RicaArgentina

ChileBrazil

Source: WB, Legal & Judicial Reform Practice Group.Compression rate = ratio between highest & lowest salary

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Judicial Review Powers

CountryWho holds Constitutional Review

Powers?Extent of Review Powers

Argentina Supreme Court

Bolivia Constitutional Tribunal

Sole court for issues on unconstitutionality of laws, decrees, or any kind of non-judicial resolution. If the action is abstract or remedial, only the President,

Congressmen, General Prosecutor, or Ombudsman may present it. Questions from the President of the S.C. regarding the constitutionality of draft laws, decrees or

resolutions, or laws, decrees or resolutions applicable to a concrete case. The opinion of the Constitutional Tribunal is binding upon the body making the query. It also

rules on appeals challenging resolutions passed by the Legislative Branch or one of its Chambers, when these resolutions affect one or more concrete guarantees or

rights, whoever is affected.

Brazil Supreme Court

Two components: Judges and tribunals do broad-based monitoring of constitutionality in matters heard under their jurisdiction, while the Supreme Federal

Tribunal undertakes more focused oversight of constitutionality. Only the S.C. is empowered to rule on interpretations of the country`s Constitution. It can also

declare federal or state laws unconstitutional. Through extraordinary appeal, it rules on cases decided in sole instance courts, where the challenged decision may violate

the Constitution. Their decisions are biding.

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Country Who holds Constitutional Review Powers? Extent of Review Powers

Chile Constitutional Court & Supreme Court

Responsibility for supervising the constitutionality of legal norms falls to two agencies: Constitutional Court, which conducts

preventive oversight of constitutionality, and the S.C., which exercises restraints. The S.C. is responsible for declaring the

inapplicability of legal precepts inconsistent with the Constitution, in a specific case, upon request by one of the parties, or upon the government’s initiative. In the case of preventive oversight, the

Chamber in which the law originated must send it to the Constitutional Court for review prior to ratification.

Colombia Constitutional Court & Supreme Court

Responsibilities of C.C.: to rule on citizen’s claims of unconstitutionality against Constitutional reforms arising from any

source & to adjudicate citizen’s claims of unconstitutionality against the laws, legal decrees, legislative decrees, bills of law, and proposed

statutory laws onlyin cases of procedural irregularities. It also reviews judicial decisions on constitutional rights. Responsibilities of S.C.: to rule on the constitutionality of legislation under Article 90, which permits the president to challenge the constitutionality of a

law, and Article 124, whereby any citizen may claim that a conflict exists between legislation and the Constitution.

Costa Rica Constitutional Court

Responsibilities: to declare the unconstitutionality of laws of any nature and of actions subject to public law (this requires that an absolute majority of its members vote in favor of the action in question); to settle jurisdictional disputes between government

branches; to answer questions regarding constitutional reform bills, the approval of international conventions and treaties, and other

legislative proposals.

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CountryWho holds Constitutional

Review Powers?Extent of Review Powers

Ecuador Constitutional Tribunal

Responsibilities: to hear and resolve cases of unconstitutionality in form and substance, of the laws, legal decrees, decrees, regulations and ordinances, and to suspend completely or

partially their effects if these are found to be unconstitutional; to rule on charges of unconstitutionality brought by the President of the Republic in the drafting of laws; to rule on opinions issued on matters of unconstitutionality by any Supreme Court chamber or other last instance appeals court; to issue rulings having general binding force on the inapplicability of legal provisions found to infringe upon the Constitution; such rulings do not have no effect

upon the original sentence.

El SalvadorSupreme Court Constitutional

ChamberTo hear and rule upon the unconstitutionality of laws, decrees and regulations. Any citizen

can file the complaint of unconstitutionality.

Guatemala Constitutional CourtIts essential duty is to defend the constitutional order. The C.C. acts as a collective tribunal

and is independent of other State bodies.

Honduras Supreme CourtResponsibilities: to hear appeals for annulment, protection, and judicial review; to declare a

given law unconstitutional, when asked to do so.

Mexico Supreme Court

Responsibilities: to process appeals for review of sentences handed down against direct protection matters (amparos directos) by Circuit Tribunals or sentences handed down by

District Courts in cases of indirect protections (amparos indirectos); to categorically resolve the constitutionality of federal or local laws and regulations, and international treaties

objected to on the basis of protection (amparo). It also resolves in single instance constitutional disputes and actions of unconstitutionality related to parts I and II of Article

105 of the Constitution.

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CountryWho holds Constitutional

Review Powers?Extent of Review Powers

Nicaragua Supreme Court

Responsibilities: to hear and rule upon protective writs for fundamental rights inscribed in the Constitution, as set forth in the Protective Guarantees Law (Ley de Amparo); to hear and

decide on constitutional challenges to law; to consider and decide jurisdiction and constitutionality disputes between branches of governments; & to hear and rule upon

constitutionality matters between the central government and municipal governments and with autonomous regions of the Atlantic Coast.

Panama Supreme Court

Consitutional Supervisory Authority is exercised through: direct and abstract monitoring of the constitutionality of the actions of public authorities (motion of unconstitutionality); upon request from any judicial instance that questions the constitutionality of provisions that the

instance must apply in a specific matter, or upon request by the parties to the matter (issue of constitutionality); prior and abstract supervision of the constitutionality of laws before the

executive branch ratifies them (Inexequibilidad); writ of protection; Habeas Corpus writ; and Habeas Data Action.

Paraguay Supreme Court Responsibility: to consider and rule on constitutionality.

Peru Constitutional Tribunal

Responsibilities: to hear and resolve, without recourse to appeal, charges of unconstitutionality; to hear and resolve final appeals on rulings that violate habeas corpus,

amparo (protection), habeas data and enforcement orders (acción de cumplimiento); to hear and resolve disputes involving jurisdiction or constitutional powers, as provided for by law.

Uruguay Supreme Court

Responsibilities: to judge all violations of the Constitution, without exception; all crimes against the rights of individuals and Admiralty cases. In all matters listed and for all others in which the S.C. has original jurisdiction, the law shall dictate the appropriate instances for trial, which in all cases will be public and include a final sentence with express reference to

the laws applied in each case.

VenezuelaConstitutional Chamber of

Supreme CourtIt exercises jurisdiction over constitutional matters and is final interpreter of the text of the

Constitution

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Administrative Capacity (I)

Number of Judges per 100,000 Inhabitants (2000)

18.0614.596.42

6.426.235.613.85

2.270.740.54 6.64

ColombiaCosta RicaNicaragua

EcuadorDominican Republic

Trinidad & TobagoChile

ArgentinaMexico

BrazilAvg. World

Source: WB, Legal & Judicial Reform Practice Group.

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Administrative Capacity (II)

Source: Malone 2003.

Judicial Efficiency

01234567

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Quantitative Indicators of J.I. (I)

WEF J.I. Index (2003-2004)

00.5

11.5

22.5

33.5

44.5

55.5

TT

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CH

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BR

A

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CU

HN

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PE

R

AR

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Quantitative Indicators of J.I. (II)

Source: Feld and Voigt (2003).

De Iure vs. De Facto Judicial Independence

00.20.40.60.8

1

de iure J.I. de facto J.I.

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Literature on J.I. in LACs J.I. in theory does not ensure J.I. in practice. Despite reforms, there are still many

challenges to J.I. Lack of changes in values & attitudes of those in

power & the general public Reforms are not integrated; lack of attention to

accountability Independence of Jud. branch does not imply

personal independence of judges.

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Conclusions (I): General Assessment of J.I. in the Region

Budget Autonomy: Larger budgets; stipulated in law Still need approval from other branches Centralized distribution of resources

within the Judiciary Courts outside major urban centers often

do not receive enough resources

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Conclusions (II): General Assessment of J.I. in the Region

Appointment: Lower courts: more transparent & merit-

based system S.C.: still political to certain degree Hierarchical control of lower courts by

S.C. still remains in some countries Importance of Judicial Council has

increased

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Conclusions (III): General Assessment of J.I. in the Region

Terms: Longer Provide judges with greater job security

Promotion & Removal Procedure: Objective merit-based procedures can still be

subject to manipulations The basis for evaluation is highly subjective In some countries, there is lack of notice of

opportunities for promotion In some cases, disciplinary mechanisms violate

judges’ rights to due process & their indep.

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Conclusions (IV): General Assessment of J.I. in the Region

Remuneration: Increased salaries In some countries, still not competitive In some cases, remuneration has increased only

at the top of the hierarchy Administration Capacity & Training:

Increased separation of judicial & administrative tasks

Problem of efficiency Problem of judicial education

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Conclusions (V): General Assessment of J.I. in the Region

Judicial Constitutional Review Powers: Done by different insitutions In some countries, there is no “abstract”

monitoring of constitutionality Decisions are sometimes only binding for

the concrete case

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Implications for PMP “Judicialization of Politics”

Greater importance of court rulings in both public policy & politics

Re-positioning of the Jud. in relation to other branches

Greater strategic interest in the control of appointments to the courts

Policy debate now aims at anticipating response of legal institutions

Not to the same extent throughout the region!

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Examples

Mexico Argentina

41

Limitations of Assessment Presented

The numeric figures are from 2000. Difficult to find information for all of

the countries for all elements of J.I. Difficult to organize countries into

ideal types according to the degree of judicialization of politics

42

Questions, Comments & Suggestions

How to summarize all of the information for the entire region?

How broadly to consider the role of the Judiciary in PMP?