Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law, The

Prillaman, William C. The judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport, CT: Praeger, 2000. 198 pp.

This is a very important comparative study on judicial reform in Latin America. The author correctly connects the fate of democracy in Latin America with the quality of its judiciary. Contrary to those who see democracy in its "minimalist" version, Prillaman brings a broader perspective. Although formally, the judiciary in many Latin American countries is free in the sense that it functions without authoritarian interference, substantially the outcome is ruinous. Indeed, the population's perception of the role of the judiciary continues to be grim.

To launch a judicial reform it is necessary first to have the tools to determine whether a judicial reform program is failing or succeeding. Prillaman proposes three critical and interrelated variables: independence, efficiency and access. Although he mentions a fourth variable, accountability, it is not clear why he does not give this variable the prominence that he grants to the other three. These variables are very well selected because each is linked to the ability of the judiciary to ensure the democratic regime, foster economic development, and build popular faith in the rule of law. Consequently, the non-accomplishment of these variables means democratic decay.

It is logical that after decades of dictatorship people expect from a democracy an independent judiciary, in the sense of autonomy from authoritarian interference. This angst for freedom, however, may degenerate not only into a politicized bureaucracy but also into an insular, unaccountable one, as in the Brazilian case. It is necessary that litigants perceive the judicial process to be fair and transparent in order to respect the process. A democratic judiciary, Prillaman points out, thus requires a balance between independence and accountability.

To accomplish efficiency is a more problematic case. It depends not only on measures taken by the judiciary to speed up cases, but also on the development of higher skills of judicial personnel; the appointment of more court officials to work on cases; the" creation of a public prosecutor's office in order to remove burdensome investigative and prosecutorial responsibilities from judges, and so on. Efficiency also relies on the good will of the legislature to change outdated laws. The judiciary frequently takes the blame for being slow when obscure laws preempt any different path.

Suppose, furthermore, that a judicial reform achieves a balance between independence and accountability and increases its efficiency. The reform loses much of its importance if access continues to be denied to low-income citizens. Here again, the socioeconomic factor is important, especially in Latin America where wealth is concentrated in the hands of few people. The costs of hiring a lawyer and paying mandatory filing fees are high. Access requires an executive decision to subsidize court costs and assure lawyer assistance.

Beyond that, high levels of corruption in the region must be addressed. As the author reminds us, corruption affects the four interrelated variables mentioned before. Corruption impinges upon individual independence and the accountability of the process because the final court decision is based on considerations other than the reading of law. It damages court efficiency and accounts for variance in economic growth and it significantly hurts low-income citizens who are less able to afford the financing of rent-seeking activities by corrupt court officials.

After identifying the above-mentioned variables, Prillaman challenges traditional studies that have focused exclusively on a single country without reference to larger comparative lessons. he then moves to the empirical part of his research agenda. The author analyses judicial reform in El Salvador, Brazil, Argentina and Chile, using his variables to determine whether reform is succeeding or failing.

One of the main lessons from this comparative study is that in order to succeed, reformers must address all the variables of the judicial system together. Prillaman argues that the failure to reform one variable produces "negative synergy" that complicates and undermines the reformed aspects of the judiciary. he posits that the four variables must be jointly addressed. In other words, the pace of reforms may be gradual but the scope and breadth must be comprehensive, a process that provokes "positive synergy," as one success enhances the others and the public slowly gains trust in the judiciary. The only country that attempted to reform its judiciary by using this strategy was Chile. Unfortunately, here Prillaman does not explain why reforms of the Chilean military judicial system were not as successful as those of the civilian judicial system.

In El Salvador, reformers tried to isolate one variable of the judicial system from the others and implement reforms in sequence. The reform failed. Reformers in Brazil and Argentina defined judicial reform in less narrow terms, but they arrived at similar results. These failures challenged two assumptions: (1) that judicial reforms can be isolated from larger social forces at work in a polity (Prillaman could have commented on how (neo)patrimonialism damages judicial reform); (2) that judicial reform is a merely a technical, apolitical reform. After all, judicial reform is a kind of bureaucratic reform. Being so, it involves altering power relationships among relevant political actors. As Prillaman nicely synthesizes, an "independent, efficient, and accessible judiciary is not necessarily a collective good desired by the public and the judiciary alike" (pp. 166-67). I strongly recommend this book, especially to those worried about the decay of democracy in many Latin American countries.