The Economist

The EconomistAugust 4th 2018 The Americas 35

2

O

NE morning this year in a window-

less modern courtroom Jorge Al-

berto Rodríguez faced justice. He was ac-

cused of driving a stolen car with

changed number plates. The judge began

by explaining his rights to him. His lawyer

then tried to trip up the policemen whom

the prosecution had produced as witness-

es. To no avail: after an adjournment to al-

low a missing defence witness to appear

via video link the judge found Mr Rodrí-

guez guilty. That seemed to square with

the evidence. Having been on bail for the

nine months since his arrest he was given

a suspended jail sentence of five years

and fined 15000 pesos ($800).

Such a trial could have taken place in a

British magistrate’s court. In fact it was in

Mexico City. The case was conducted un-

der a radical judicial reform. This replaces

an inquisitorial model long the norm in

Latin America under which judges inves-

tigated and evidence was all in writing

with an Anglo-Saxon adversarial system

and oral trials. The new system has taken

more than a decade to roll out and is more

expensive. But it has several advantages.

Fewer defendants are remanded to over-

crowded jails cases are heard more quick-

ly and the prosecution must publicly

prove its case. Under the old system

judges relied on confessions (often ex-

tracted by torture).

Yet the reform is much criticised. Its in-

troduction has coincided with a big rise in

violence in Mexico. Although this was

caused mainly by the fragmentation of

criminal gangs and their move into new

lines of business many politicians blame

the reform instead. Judges and prosecu-

tors are insufficiently trained in the new

ways and many are going back to “old

practices” such as relying on confessions

and shelving cases that need investiga-

tion says Sandra Serrano of Flacso a re-

search centre in Mexico City.

Mexico’s experience is not unique.

Since the 1990s the main focus of judicial

reform in Latin America has been on crimi-

nal procedures. In all 15 countries have

made the switch to the adversarial system.

This is an improvement but not a panacea.

It “hasn’t reduced impunity nor has it in-

creased citizen trust in the system” writes

Luis Pásara a Peruvian legal scholar.

Many Latin American countries have

reformed their economies electoral sys-

tems and welfare states. But establishing

the rule of law is much harder. Courts de-

pend on many other actors especially po-

lice and prosecutors as well as politicians

and citizens. Judicial reform nearly always

involves trade-offs especially between in-

dependence and accountability. And bet-

ter procedures do not in themselves create

better judges or justice.

Take Peru which made the procedural

switch starting in 2004. While investigat-

ing a drug-trafficking ring in Callao police

found calls to judges on suspects’ phones.

That led to the exposure of “corruption in-

fluence-peddling and the existence of or-

ganised networks inside the judicial sys-

tem” as a committee set up by Martín

Vizcarra the country’s president report-

ed last month. One judge was taped ap-

parently arranging to absolve a suspect of

raping a 13-year-old girl; several had ques-

tionable contacts with politicians.

The president of Callao’s high court is

now in jail. The justice minister and the

seven members of the National Judicial

Council which appoints judges were

fired while the head of the judiciary and

the public prosecutor resigned. The case

confirmed what Peruvians had suspect-

ed. Their courts are beholden to politi-

cians and people who can pay.

Yet the scandal presents an opportuni-

ty. Mr Vizcarra has proposed a referen-

dum on the committee’s recommenda-

tions to appoint the judicial council and

judges through a public competition and

to set up a similarly chosen body to scruti-

nise the judiciary. A referendum will have

to be approved by congress most of

whose members belong to parties (Popu-

lar Force and APRA) that are thought to

have undue influence over the judiciary.

“There are people with an interest in not

changing the current system” the com-

mittee noted. Public anger may be strong

enough to overcome resistance.

In Brazil’sLava Jatocorruption cases

judges and prosecutors have brought

many powerful figures to book though

they have occasionally committed ex-

cesses. Judicial reform in Chile as well as

Mexico has produced some improve-

ments. Peru has some honest judges and

prosecutors. But public vigilance has to be

sustained if a reformed judicial system is

not to lapse into bad ways. The Spanish ti-

tle of Mr Pásara’s booktranslates as “An

Impossible Reform”. But he concludes

that accumulated experience and a great-

er thirst for justice may mean the impossi-

ble is merely improbable.

Bello Judging the judges

Why is strengthening the rule of lawso difficult?

cannabis. Their design isthus likely to be

“pleasant but not too pleasant”.

In Ontario the most populous prov-

ince cannabis shops will keep the product

out of sight. Customers will fill out order

forms which employees will execute in

back rooms. (The province’s new premier

Doug Ford whose late brother was a crack-

smoking mayor of Toronto may have oth-

er ideas. He has mused about allowing

sales in private shops.) New Brunswick an

eastern province will require cannabis to

be kept behind glass. In Nova Scotia it will

be displayed behind a counter except in

one central store where customers will be

able to sniff the weed.

Things will be livelier in the other areas

including Alberta British Columbia and

Manitoba where the private sector will be

allowed. In some cases it will compete

with government-owned online and

bricks-and-mortar retailers. Private shops

will be freer to “pursue a delightful retail

experience” says Ms Brown though the

delight will be curbed by a federal rule that

cannabis be sold in plain packages bearing

large yellow labels and smaller red ones

warning of health hazards. There will be

room (just) for the logo of the producer.

Will Canadian tokers be able to get sup-

plies from neighbouring provinces with

glitzier emporiums? Maybe not. Most prov-

inces limit how much people can transport

across borders. They may do the same for

cannabis says Kirk Tousaw a lawyer. Brit-

ish Columbia already has a “ridiculous

and unenforceable” requirement that any-

one bringing cannabis from outside report

to provincial authorities. “It boggles the

mind that in 2018 you can’t cross an imagi-

nary line and buy 24 beers or 30 grams of

cannabis without filling out a form or pay-

ing your own province” Mr Tousaw

fumes. Canadians waving goodbye to pro-

hibition will be tangled up in red tape. 7