ACCESS TO JUSTICE AND JUDICIAL REFORMS IN LATIN AMERICA by nsr11162

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									ACCESS TO JUSTICE AND JUDICIAL REFORMS IN LATIN AMERICA
                 ANY HOPE OF EQUALITY?

                                                                                      Jorge Correa Sutil


                                                 I
                                    Introduction and Objectives

         The organizers of this conference proposed as the subject of this panel a vast and ample
number of themes. If we all found ourselves ruminating over the question of equal access to justice
and the effective protection of the right of all, every question formulated could give rise to a different
paper. We are faced with the questions of what are the causes of unequal access to justice; what
reforms could be made to eliminate these inequalities; if the economic inequalities can be legitimately
recognized in the administration of justice; and if, for example, the quality of legal defense should
depend on wealth; if there exists a special obligation to ensure that traditionally disfavored groups
have representation. Thus the questions continue to unfold until we reach the interesting concluding
question of what value precedent should have in the attempt to realize equality and the security of
litigants.

        Before this vast number of questions I have opted to conclude that we panelists have been
offered, like a menu, a variety of options among which we may choose.

        In my case, the discussion on which I would like to embark is the question of how the
administration of justice can be reformed to eliminate unequal access that is today so easily and
dramatically verifiable in the countries of Latin America as well as in more developed countries. I
want, however, to define the question a bit more specifically. First, I prefer not to contemplate the
elimination of unequal access, but rather to be content with something more modest than the
objectives set by the conference organizers, or the possible diminution of the inequality that exists
today in the region and the effective protection of right, particularly as between the rich and poor.
Secondly, and with the intent that the discussion not be strictly theoretical, I prefer to contemplate
the reforms that are actually being attempted in Latin America and whether they will have an impact
on the equality of access to the system. Above all, I would like to reflect on the risks and
opportunities that the actual process of judicial reform presents in almost all Latin American countries
to improve the capacities of the poorest and least protected sectors to defend their rights.

       Before addressing the central theme directly, I would like to refer to a few tidbits related to
the questions posed by the conference organizers. They ask us whether the quality of a legal defense
can depend on wealth. Six years ago I had the opportunity to conduct an empirical study in low
income sectors in which we were able to present an inquiry to a representative sample of Chile=s
urban sectors, asking the population about its experiences and perceptions concerning justice.1 The




                                                    1
poor not only perceived that justice depended heavily on wealth, but they also saw the actors of the
legal system engaging in discrimination and corruption that worked against them. Following are some
of their opinions on the subject:

$       Almost two-thirds (63.5%) said that judges behaved differently with the rich and the
        poor.
$       More than a quarter of those polled (26.3%) perceived that the judges ANo se
        arreglaban con plata.@
$       Almost 90% thought that lawyers were too expensive.
$       Fewer than one-fifth thought that lawyers were more concerned with defending those
        who had money.
$       90% agreed with that lawyers provided more assistance the more money they
        received.
$       Almost 80% agreed that lawyers were corrupt and that they delayed transactions to
        get more money out of people.
$       Almost two-thirds thought that police treated the well-dressed well and the poor
        badly.
$       Something more than half thought that the intent of the police in detaining people was
        to charge them money.
$       Finally, almost 90% expressed the opinion that in Chile, there was one justice for the
        rich and another for the poor.

        The second question I would like to present regarding Chile involves the existence of
representation for traditionally disfavored groups. Chile has 21 members on the Supreme Court, none
of whom has an Indian surname. Women occupy less than one-third of the positions of Minister of
the Appellate Court and of positions of equivalent status. Yet, they represent more than half of third
rank on the judicial hierarchy. On the inferior levels of the judicial register (fourth, fifth, and sixth
categories) the percentage of women rises to 60% (circa March 1998).2 This demonstrates clearly
that as we descend the pyramid of the judicial hierarchy, the number of women increases even as they
find themselves absent from or underrepresented in the superior categories.

        In terms of the presence of ethnic minorities, review the judicial register of 1998, in which all
of the nation=s judges are listed with both of their surnames. Not only did I not find a single Indian
surname on the Supreme Court, but I did not find a single one in the 188 names that constituted the
top two categories of the judicial register. Reviewing the third, fourth, and fifth categories, I only
recognized four Indian surnames among 643 officials.

        Having made these two digressions, I now enter my intended subject. The following section
presents a succinct description of the reformist tendencies common to Latin American countries. The
third section is intended to prove that neither the content of the reforms nor the forces behind them
have as their central principle equal access. Finally, part four will develop some opportunities this
transformative process presents for a more equal access to justice and for decisions that will favor
equality.


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                                             II
              Judicial Reform in Latin America: The Presence of the Disfavored

       Satisfied with what I have announced, I would like in this section to refer to the judicial
reforms that have been attempted in the southern part of our continent and to ask if some of them are
centered around improving the protection of the rights of the disfavored.

        Initially, my answer is negative.

        Judicial reform in Latin America still contains much more rhetoric than reality. Without doubt,
reforms that might be approved are discussed; more reforms are approved than can be effective and
more changes are intended than fragile institutions such as the judicial branches in Latin America can
absorb.

        We should recognize that we are in a time of change. Almost all of the countries of Latin
America have attempted or decided to change the mode of government of their Judaic systems. In
the last decade and frequently as part of their transitions to democracy, Argentina, El Salvador,
Panama, Peru, Costa Rica, Colombia, Paraguay, and Ecuador have changed their Constitutions to
create ACouncil of Magistrates@ destined to govern their Judaic branches, following the post-War
European model. Guatemala, Honduras, Chile, and Nicaragua have discussed projects similar to
Constitutional Reform. A number of similar countries have changed their Constitutions to guarantee
that a percentage of the public budget be devoted to the judicial power, establishing, at the same time,
the capacity of the Council of Magistrates to administer said funds.3 No fewer than 10 Latin American
countries have modified the rules regarding how judges are nominated and the terms and conditions
of their payment.4
        Similar is the number of Latin American countries that have made efforts to change their
criminal procedure to a less inquisitive, oral model, to buttress the Public Ministries.5 Almost all Latin
American countries are making efforts to train their judges and to better educate those who intend
to become judges; various Judicial Schools have been created.6

       Practically speaking, each of the Latin American countries have discussed programs to
improve their systems of free legal assistance and the APublic Defenders have either been buttressed,
modified, or there has been talk of reinstituting it, following the Swedish model.

       The rhetoric and the projects concerning alternative dispute resolution exist in all of the
countries, as do projects to reform the police and modernize judicial offices.

        International agencies have been important actors in this process. First, AID donated no less
than $200 million to reform the judicial system between 1985 and 1995, especially in Central
America. The World Bank has approved or preapproved in 1998, $90 million for judicial reforms in
diverse countries, particularly Venezuela and Bolivia. The Inter American Development Bank has not



                                                    3
remained behind and has become an important actor, approving or preapproving projects in the region
worth $130 million in 1998.7

       As I have already noted, it seems to me that we should be particularly careful in allowing
ourselves to be caught-up in the rhetoric of reform and delude ourselves into thinking that things
change when the letter of the law changes.

         There is no doubt that we are living in a time of change; and, above all else, we are witnesses
to a surge of interest with respect to a hitherto unknown chore in our political and social histories.
The political, economic, social, and cultural history of Latin America has occurred, in contrast to the
United States, almost entirely to the margin of the functioning of the judicial branches. More than in
the approved reforms or in related discussion we appear to be in a fundamentally different time than
in previous eras. We have come to understand that the judicial power has become a relevant actor
in our history. Its decisions begin to have relevance to our stability and to the development of our
economies; in the capacity to control political corruption; in the effective protection of human rights;
in the insecure states in which our populations live and at the level of our cultural diversity.

       It is possible then that we may now ask ourselves about equality in the judicial system. Not
just how it has been proposed by the conference organizers to reflect on equal access to the judicial
system, but also whether or not judicial decisions can lower the levels of inequality and discrimination
present in Latin American society.

        From afar, I think that we should not fall into the trap of excessive optimism. If one observes
reform proposals that are supported with the most force in Latin America, especially by the
governments and international development agencies, I would note the existence of four fundamental
forces that have allied themselves to attempt these changes. None of them, as we will see, has as its
priority the equality of access of the protection of the rights of the most disadvantaged.

                                            III
          The Open Economy of the Market: Modernization of the Judicial System
                and the Decentralization of the Fora of Conflict Resolution

       I think that the major impulse of reform in the judicial systems in Latin America has been
motivated by economic order, with which the majority of Latin American countries experiment.

         As long as the government was the major investor in Latin America, as long as it controlled
prices and was the major employer, political parties and government authorities were the most
important fora in which to situate expectations of social mobility. Now that the role of the state as
intervenor has been diminished, the principle social conflicts no longer necessarily go before political
offices to be resolved. Many of the most important conflicts that occur today in Latin America do not
result in demands on the government for specific assistance programs or changes in the social order.
The actors confront one another in the market for the distribution of social benefits and appear before



                                                   4
the courts frequently to ask that the market be regulated, that the regulations of the market be made
effective, or that disputes that the market cannot resolve be resolved by the courts.

        In open market economies, the courts are transformed into an important forum for making
effective the rules that regulate the distribution of wealth. There has been a rise in the number of cases
before the courts. Transitions to market economy tend to provoke the bankruptcy or closure of
important industries in the private sector, much like the firing of workers in the public sector; conflicts
that not infrequently are resolved in the courts. Beyond this transitional element, open market
economies augment judicial conflicts, a product of deregulation and of the complexity of commercial
operations. This phenomenon has created pressure to create more courts, to enlarge the judicial
budget, to administer efficiently the institutions, to better train judges in commercial and financial
matters, and to inquire into alternative dispute resolution.8

                                            IV
                 Transition to Democracy, Human Rights, and Judicial Power

        Together with the modernization of the economy and the opening of market, Latin America
has lived through democratization. If it is true that the levels of populism and Acaudillismo@ are still
sufficiently high that we have no illusions that democracy has been consolidated on the continent, it
is nevertheless true that the era of military dictatorship is in the past.

         The transitions to democracy have created pressure for judicial reform. The history of the
transitions has been interwoven with the history of what the judicial systems have done with regard
to human rights violations.9 Perhaps the best example of this is case of Argentina, where the image
of the transition to democracy is nearly synonymous with the trial of the military dictators, which
Argentineans could follow in the newspaper or on their television screens.

         The recognition of a more modest and less effective role of judges in the face of human rights
violations and the verification that they are relevant actors in the defense of rights has led many
nations to try to reform their judicial systems, the methods of judicial nominations, and the regulation
of judicial careers. The challenge is the democratization of the Judicial Power such that judges adhere
to democratic values, while still maintaining their independence from short-term political interests.
It is probably too soon to evaluate this efforts. All in all, it seems necessary to avoid an excess of
optimism surrounding the capacity of these reforms to achieve indescribable ends. The development
of these ends has been contaminated by partisan political interests. Frequently under the rhetoric of
establishing new bases for an independent Judicial Power are hidden efforts by the government and
parties to maintain as much dependence as possible. The signs of judicial officials struggling to
maintain their independence are scarce and the idea that the other powers of the state are capable of
conceding them their independence is hardly credible in the Latin American context.

                                                V
                The Insecurity of the Citizenry: The Reform of Criminal Justice



                                                    5
        A third force that has sparked judicial reform in Latin America is linked with the rise in crime
and particularly with the rise in organized crime. The demand for security has become one of the
citizens= principal preoccupations in the majority of countries in this region and has resulted in the
accusation that nascent democracies are incapable of handling the rise in crime in the cities.10 The
control of organized crime and particularly crime linked to drugs trafficking and corruption, have
become a central theme in the consolidation of democracy in Latin America, and is a decisive factor
in the granting of the judiciary a central role in the social order.

         President Fujimori interrupted the constitutional function of the other branches in April of
1992, with one of his central argument being judicial corruption and the inability of the judicial branch
to combat corruption.11 Similarly, the thwarted coup led by de facto president Chávaz in Venezuela
in 1992 claimed as one of its banners the lack of legitimacy of the Supreme Court and the incapacity
of the judges to confront corruption. A good part of the reforms that were attempted at the beginning
of the decade in Central America were motivated by the United States as part of the AWas on Drugs,@
predicated on the assumption that a strong judiciary would be capable of making effective the law
against drug traffickers, diminishing the production and exportation of drugs to the United States.

        In these efforts to make these judicial systems more effective, a curious alliance has resulted
between groups that seek maximum efficiency in the prosecution of crime and more liberal groups
that seek to secure due process and the rights of the accused. This alliance, which of course has not
been exempt from tension, has stimulated a reform of criminal procedure from an inquisitorial system
based on the confessions of the accused to an oral system in which judges, and not lower level
functionaries, can resolve the most important procedural and substantive issues.




                                             VI
         Modernizing Societies that Tolerate a Degree of Diversity Lead to Complex
                            Moral Conflicts Before the Courts

        There is a fourth factor that has helped to reveal that the judicial power is constituted by the
variety of complex moral questions that reach the court and are difficult to resolve. The recognition
of diversity and the acceptance of the diverse guidelines for conduct in strongly intolerant and
Catholic societies have produced tensions and conflicts that have often ended up in court. Themes
such as freedom of expression, indigenous rights, discrimination against women, the balance between
economic development and the defense of the environment, the rights of homosexual communities,
to the movies that we can or cannot see, have become issues for litigation, augmenting the presence
and gravity of the courts in our social and cultural order.

                                            VII
              Will These Processes of Reform Produce Equality Before the Law
          and Guarantee the Effective Protection of the Rights of the Dispossessed?


                                                   6
        To be sure, the forces of reforms and the changes attempted that have been mentioned are not
the only ones that exist in Latin America. I aspire, however, that we come to a consensus on those
that are most important.

       Are these phenomena conducive to quality in the judicial system or decisions that contribute
to equality in Latin America?

        With regard to Part II, it is possible to conclude that neither the poor nor any other disfavored
or discriminated against group appears as part of the relevant forces that are stimulating change in
the judicial system. As we have established, these groups are those that are concerned with
modernization of the economy, with sparking the processes of democratization, and with the citizens=
sentiments of insecurity with the modernization of our culture.

        The previous conclusions do not imply that some of these transformation cannot have an
impact on equality. If the reforms aimed at independence and buttressing the democratization of the
judiciary are successful, it is reasonable to think that judicial culture will be more sensitive to the
inequalities presented by the parties to litigation, reinforcing the tendency to interpret extant norms
to guarantee equality of Aarms@ between the litigants; opening the spaces to the representation of
diffuse or collective interests and adopting other jurisprudential criteria that, within our formal and
individualist juridical culture result today in potent obstacles to equality and the exercise of rights.

        On the other hand, an oral, adversarial process, within which a ministry and public defender
with sufficient resources could exist, could stimulate a significant change for the poorest sectors, or
the frequent victims of crimes that constitute nearly the entirety of the penal population.12 The actual
inquisitorial process and bad management of our courts have reflected alarming number of prisoners
who have yet to be found guilty as well as forgotten prisoners who spend more time in prison
awaiting trial than they could possibly receive were they convicted. If effective and concrete reform
could be made in this area, we would have hope of realizing equality.

                                             VIII
                 Opportunities for Equality Raised by the Processes of Reform

         I would like, as I have announced, to end this project proposing a discussion of five topics
that, in my judgment, constitute opportunities, opened by the processes of reform, to realize equality,
protection rights, and enable judicial decisions to contain elements favoring equality.

                                                IX
                    The Possibility of Realizing a Lower Level of Corruption

        We can establish that the Chilean judicial system is one of the least corrupt in Latin America.
We have already seen, in the numbers that I cited at the beginning, that one of the principal barriers
to the poor=s access to justice is their perception that the judicial system and each of its principal


                                                   7
actors (judges, lawyers, and police) are corrupt and discriminate against the poor. Judicial corruption
is, without doubt, one of the principal factors that mitigate against equal access to the judicial system
and the protection of rights. It augments the costs of litigation and gives wealthier litigants
insuperable advantages that have nothing to do with the claims of the parties.

         Without doubt, a reform process, whatever its orientation, opens opportunities and risks with
regard to corruption. Being attentive to his seems to be a fundamental factor for the value of equality
in the judicial system.

                                               X
             The Possibility of Rational Distribution of Scarce Judicial Resources

         Our juridical culture in Latin America has always held that the state can and should resolve
each and every one of the judicially relevant conflicts in society; it constitute an essential guarantee
of the state and the law. This principle, that judges brandish with pride, ignores that evident fact that
justice is not free and that the resources used on its behalf are scarce. Instead of recognizing this
reality, we lawyers have preferred to be faithful to the principle that justice should be accessible to
everyone and everyone conflict, leaving to the economists the Asmall@ problem of finding the
resources to make it so. Given that the economists have no been able to realize this alchemists=s
dream, we find ourselves in the worst of all worlds.
         The judiciary, endowed with a poor infrastructure, of scarce resources and a poor capacity
for administrative management, are declared organs accessible to all. The practical result is that the
courts are overburdened with cases; and, operating deficiently with respect to them all, operate
especially badly for poor litigants. When a written system becomes oversaturated, it becomes essential
to have a lawyer who can Amove papers.@ Professional prestige and the ability of the lawyer to pay
off employees of the court become decisive for the rate at which cases are heard.

         It has become an uncontested point in the literature; the slowness or speed of the process
results in a decisive barrier to access to the judiciary and the equal protection of rights.13 The slow
written systems of Latin America result in overburdened courts and courts in which low level official
control the speed of the process, which implicates a relevant factor in the inequality of litigants, with
significant advantages for rich litigants over poor litigants, not just when they confront one another,
but as they compete for the attention of the court.

        In other words, there being scarce resource, the rule of universal access of all persons and
cases implies that the system, particularly in civil cases, is filled with wealthy litigants, leaving the
poor without access for their inability to retain diligent lawyers or procure informal pay offs that help
accelerate the disposition of their cases.

        The reform process as it has been discussed, particularly concerning the criminal process, has
recognized that judicial resources are not unlimited and has opted for the principle of opportunity
rather than equality. This signifies that the Public Ministry, within certain legal limits, could decide



                                                   8
not to bring a case before the courts, because of the character of the crime, for lack of evidence, or
for other reasons.

         The same selective criteria appear necessary in the civil context; as had been said, this
selection is made by the market, privileging the wealthiest and most influential. In the Chilean case,
this is evident if the homogenous composition of civil cases are analyzed, where practically three
fourths of the cases consist en fees charged by the financial system; at the same time, the judiciary
devotes a significant part of its resources to assess conduct that is not in its jurisdiction.14

        In other words, to favor equality of access it is necessary that we lawyers recognize the
scarcity of resources and the consequent impossibility that the system deal with all possible cases and
the necessity of ensuring that the selection of causes be made according to rational and
pre-established criteria and not through the market.
                                                XI
                          Judicial APrices@ and the Myth of Free Access

        Some countries in Latin America, as is the case in Chile, have adopted a system in which the
use of the judicial system is free for the litigant, who does not have to pay the costs of lawyers.
Normally, this policy is presented as a great conquest for equal access to justice. This is a fallacy.

        At least the case of Chile proves that free access compromises equality. First, justice does not
become free because it has been declared free. What such a declaration produces is simply the
translation of the costs from the litigants to those who contribute to the system. Despite this
guarantee, civil litigation continues to be monopolized be those with high incomes, which signifies
that the taxes and expenditures on the judicial system are regressive as far as their distribution is
concerned.15

         On the other hand, as we have already established, though Ajustice@ is free for whatever
litigant, lawyers are not free. The poor do not have access to lawyers, or have access to poor quality
layers, and as a result, the process proceeds more slowly for them. Thus >free access@ augments the
slowness barrier before the poor.16

                                             XII
                   Alternative Systems. The Necessity of Proper Distinctions

        If there is any theme that is in vogue in discussion of judicial reform in Latin America, it is
alternative dispute resolution. The subject has received the decided support of international agencies.

        This tendency appears once the state has charged itself with reinforcing the fora that existed
in indigenous cultures, which have been maintained only in Peru, Mexico, and Ecuador.

        I an cognizant of the arguments made against the extra-judicial resolution of disputes that
interest the entire community and disputes that involve a measure of the exercise of political power.


                                                   9
I have no doubt that the entire society has an interest in the just resolution of juridical conflicts that
occurred within its borders. However, it is also true that taking this principle to its logical conclusions
requires the judicial disposal of all conflict, something for which there are not enough resources. An
ethic of responsibility obligate us to find viable political solutions, and for this reason, it can be useful
to make a few distinctions.

        There are types of litigation in which the decision produces public good that interests the
whole community and implicate political power. This is the case with cases of constitutional
dimension in which precepts of the public order are set. Serious crimes are similar in that the whole
society had an interest in the preventative ends of punishment.

         The majority of family, civil, and labor-related cases are different. When considered properly,
these cases also help configure a certain order; the rules applied by judges are more precise than
constitutional principles. At the same time, the majority of these cases, delays in the system result in
a serious barrier against the poor. Think, for example, of a labor dispute between a business owner
and a worker who is unemployed or is a single mother who is seeking child support from her child=s
father. In these cases, though it appears dramatic, an ethic of responsibility requires that we recognize
the truth the a bad arrangement may be worth more than a good judgment. In theses cases,
administrative agencies can be particularly useful in looking for solution that respect ethical limits and
protect the weaker party in the conflict.

        In this second sense, it might be of interest to analyze a comparative data that resulted from
an investigation into poor urban sectors in Chile.17 Subjects were asked with what frequency they or
a member of their family, suffered a legal problem of one of the four categories in column one:
criminal, family, labor-related, or civil.18 The third column shows the percentage of these cases that
interviewers estimated reached the legal system; the last column shows the percentage of these cases
that actually reached the courts.

         What I would like to emphasize about the chart is that the poor believe that close to half of
the cases that reach the system are actually presented. Other questions from the same investigation
show significant levels of dissatisfaction with these matters. The study sought to indicate that the
administrative agencies that deal with these cases in Chile struggle, in the perceptions of the poor,
to satisfactorily solve many of these problems.

        Civil problems, which do not have administrative agencies in charge of them, come before the
system at the low rate of 17% and before the court at a rate of 10%. This investigation indicates that
the lack of administrative agencies in charge of alternative dispute resolution of conflicts results in
an augmentation of unequal access against the poorer sectors.

         Another notable aspect in this same chart if that family problems reach the legal system at a
rate near 50%, a disparity with the other branches. These are practically the only case in which the
judicial system can be accessed in Chile without a lawyer and which are characterized by informal
processes. These tribunals have a tradition of giving direct attention to the public and are assisted by


                                                     10
social workers. The study indicates that deformalization and the suppression of the necessity to
litigate with lawyers could be a successful alternative in resolving disputes among the poor.

         Before we become buried in a discussion of alternative dispute resolution, we must make
distinctions, because the different conflicts have different levels of compatibility with these
non-judicial methods. In some cases, it seems reasonable and convenient to develop alternative
systems to reach quicker resolutions than our judicial systems are capable of providing.

                                               XIII
                       The Judicial Forum and the New Role of the State.
                 Is it Possible to use the Judicial Forum to Produce Equality?

       I have argued that the most important change in Latin America is that governments have
diminished their roles in the majority of countries in a radical way.

        This represents a significant change for the poorer sectors. During most of the twentieth
century, the least favored groups learned to integrate themselves into the political system and to
participate in the social and economic benefits of the system through organization and political
participation. Political parties and participation in government represented the most important path
through which many Latin Americans were able to improve their positions, especially in terms of
education, housing, health, pensions, and in the creation of social mobility that otherwise had been
impossible to achieve.

        The era of the benefactor state has reached its end in Latin America. The majority of decisions
and the majority of the power being lost by governments has been transferred to the market. The
market is now a great forum in which diverse groups advance their interests and try to resolve their
conflicts.

        This is not good news for equality. If there is a place where deficiencies are no more than
deficiencies and where power tends to augment itself, it is in the market.

        The losers in the market game, those who are discriminated against and the poor, should find
other fora for demanding better conditions. The market neither knows of nor hears claims for justice
and equality.

         During most of the twentieth century, governments, political parties, and other public
institutions were the fora in which social justice, equality, and human dignity were claimed. The
courts were not a part of this history.

        Those political channels narrowed significantly. The Judicial Power has become the
depository for these new demands, even as it had not been an important forum in the Latin American
tradition.



                                                  11
        There are a few recent signs as to how disfavored groups and the poor are taking their cases
to judicial fora. Indigenous people claim large sums of compensation from the firms that have for
many years exploited the wealth of their territories, harming the environment; women=s groups are
beginning to petition judicial fora for equality; and, most importantly, a movement of lawyers willing
to defend collective and diffuse interests in Latin America has arisen. Many of them are here in this
seminar.

        In other words, what I would like to argue is that, beyond the specific reforms that are part
of a deliberate process of change, the greater transformation is occurring on the level of economic,
political, social and cultural change with which the majority of the countries of the region have
experimented. Economic development, democratic stability, the state=s operation of the law and the
guarantee of human rights depend, unlike at any other time in the region=s history, on the decisions
made by judges.

        Inevitably, this suggests not just that the judiciary ought to resolve more cases in which
equality is implicate. It signifies as well that judicial decisions will begin to gravitate, like never
before, toward the constitution of a social order that is more or less equal.

         The challenge is not small and the difficulties are many. In contrast to the political forum, the
rule is that the judicial power in Latin America is influenced by a strong conservative and formalist
tradition, which without a doubt creates a formidable obstacle in the attainment of great levels of
equality.

        This transfer of claims from the political forum to the judicial forum presents opportunities.
Because in the courts, at least in the courts not controlled by corruption, powerful parties cannot
silence the debate or refuse to respond to it as they can do in the market and in the political arena if
they have accumulated sufficient power. In the judicial forum, moreover, the powerful must
necessarily participate in litigation by invoking reasons and principles of justice and equity. In these
conditions, the old rhetoric of the principles of equality and anti-discrimination constitute a valid,
legitimating discourse and a hope for equality in Latin America.




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