The Economist

(Steven Felgate) #1
The EconomistAugust 4th 2018 The Americas 35

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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
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