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"reconstruction must not be at the expense of transformation" Conceptual Document Historical-Judicial Environment of Central America In order to understand the characteristics, the vices and the virtues of the different Judicial Systems of Central America it is indispensable to give a brief historical summary of the Region. With the exceptions of time and space, authoritarianism was the characteristic of the means and forms of governments of the different countries of the Isthmus. This brought with it, as a consequence of a true concentration of power in the hands of either a dictator or an elite, greatly diminished Judicial Powers, in which the term "Power" meant exactly the opposite. The Justice Systems did not exercise, as it was logical to expect, a controlling role in the activity of the State nor did it dispense equitable or impartial Administration of Justice, nor was it accessible to all the citizens of the different countries. Judicial affairs came to be, from the point of view of real power, somewhat secondary; the judgements had an esoteric origin for the great majority and was almost always accommodated to the dictates of power and to the interests of elite minorities. Lamentably, the Justice System is still somewhat weakened by the negative circumstance previously described. Confidence and credibility are two terms that today have little value in the Justice System, and those of us who are involved in meting out justice have a tough row to hoe in producing it. Nevertheless, progress has been made, progress that not all recognize and whose notice must be given. The negative factors of the preceding should not make us lose sight that if we take accounts of the status of justice in 199, we will have to recognize with complete objectivity that it is not the same as it was a decade ago; there are positive signs on the horizon. Even though this may be true, there continues to be a negative and particularly prejudicial perception that there is very little transparency in the Justice Administrations. To reverse that perception is a challenge of great magnitude and one of immediate importance for the institutions of Justice themselves, and it carries with it a transcendence and importance for governance in order to be able to generate the appropriate climate for investments and for the strengthening and consolidation of the modern States of Law propose to build in the Region. Credibility of Central American Systems of Justice. Truths And Fallacie Although it is not a phenomenon restricted to the countries of Central America nor only to Judicial Powers, there is in the countries of the Isthmus a campaign afoot to try to diminish the achievements made in the public sector, especially those in the field of justice with the attempt to promote a negative perception of the same. This phenomenon has diverse causes: a) on the one hand, there exists an undeniable desire by authoritarian regimes of the past in some sectors of our countries, sectors whose social, economic and political control has been reduced by the establishment of democratically elected governments; b) because of economic and social difficulties that our countries have been confronting for several years, aggravated by recent internal conflicts, an escalation of delinquency of afflictive magnitude and of negative consequences of every type has been generated. This has placed the democratically created, new Security Systems on the bench of the accused as inefficient and inefficacious. At the same time it has produced a sentiment against any reform of Penal Legislation that could be adapted to parameters of the modern and democratic state, to such a degree that because of ignorance or bad faith it becomes responsible to the laws that produce crimes and criminals. This causes us to lose sight of the true causes of the crime and to diminish the quality of the efforts that are being carried out to combat it; it also provokes a forgetfulness of the poverty situation in which large segments of the Central American population live and the little or no access that this population has to the benefits of civilization; and c) it has produced the perverse and fallacious perception that judges of any kind, and especially those of the Penal System, exercise their functions in a corrupt form, in a non-transparent away, and that they apply laws that are characterized as bad before the fact without the moral integrity that they ought to use on doing so. In summary, we allegedly have bad judges, bad laws, bad systems of security, and, according to some, no significant progress made as regards the modernization and strengthening of the State in the aforementioned sectors and particularly in the sector of justice. Central American Judicial Reforms During the last 15 years, even in the midst of the conflicts, which we have fortunately overcome, vigorous judicial reform processes in our countries were initiated. These reforms were scientifically conceived and international cooperation played and still plays a very important role in their conception. Several different types of Constitutional reforms were introduced to empower the quality of justice, to provide for a better integration of the tribunals, to create the appropriate conditions that would allow for the establishment of true Judicial Careers, and to strengthen Judicial Powers as an indispensable condition for the creation of modern States of Law. One of the great chapters of these reforms included: the introduction of new Codes, the introduction of orality in the processes, a very important point in order to achieve transparency, the adaptation of domestic law to international treaties that privilege human rights, the introduction of technologies that allow for greater certainty and speed in judicial processes, and other aspects that are, in my opinion, positive points in this difficult road to judicial reform. The preceding process has come up against great difficulties, including public opinion that is manipulated by sectors that see in the progress of justice and obstacle of the State’s management in their favor. It is logical that this should occur, it is the culture of resistance to change, but nevertheless, it constitutes a difficult adversary to be defeated in the difficult road toward progress that justice must take. A very important aspect of the judicial reform programs has been the intense training which the different operators of the Justice Sector have undergone; teachers from different countries have given a considerable number of courses to judges, district attorneys, public defenders and attorneys at law, as well as to different members of Public Security and other sectors of the population, in order to improve their skills and abilities in the activities that they carry out. Personally, I have been a witness and I can testify to the quality and quantity of the work invested in this very important field of training that has been done and must be repeated in order to make up for serious formative deficiencies that have arisen from a university education in crisis and from deficient educational systems. It is worth reiterating that no new laws, no new processing systems were introduced without prior knowledge of the public, particularly that of civilian society. Everybody was able to access the different projects. A huge program was developed to spread the word, and it continues to be developed in our countries, thereby allowing for constructive debate, and of democracy-generating element. Nevertheless, certain interested sectors continue to make accusations that these new processes of producing new norms lack transparency. Nothing could be further from the truth. Strengthening Of Transparency The new democracies have, among other characteristics, that of producing a true tempest in the use of freedom of expression and freedom of information. This is good, I would even say excellent, for the generation of true transparency in all the processes of modernization of the State. In the particular field of justice, duly informing society is indispensable. The walls of justice have to be made of glass so that transparency may function and so that confidence and credibility in justice may be produced. In the first stage of the process for building democracy, still unaccustomed to respectful and creative debate, it is easy to attack, with no basis in reality, those whose reaction or reply can not by principle be violent. This is the case for those who apply justice. Nevertheless, we're sure that it is much better to support unfounded attacks, irresponsible accusations, unfounded claims, simplistic and irrational generalizations, than a system that empowers esotericism and privileges terror. We must arm ourselves with patience and we must understand that the waters always arrive at the appropriate level in due time. Having said the preceding, we want to talk, and we must do so, about how to strengthen transparency in justice. An important first step, in our opinion an indispensable one, is the creation of true Judicial Careers in the countries of the isthmus, careers that will guarantee suitable nominations, stability in duties, current insuring that those who merit it will have the possibility for fair promotions based on merit, that salaries will the appropriate for judicial employees, and that there should be a strict disciplinary rule that would allow for the expulsion of undesirable elements from the system, and, in the case of those who can be rehabilitated it should be done with strict sanctions. This demands modern and efficacious systems of judicial investigation that would use scientific methods for detecting and establishing cases of corruption, all of which require training, resources and other expenses that the countries of Central America most likely do not have at this time. There has been some progress made in the field of the Judicial Career but not enough. This system for these careers will require an injection of resources in the immediate future, and the development of systems of investigation will only be possible with sufficient international cooperation. The preceding does not exclude that due attention should be paid to those who serve justice without forming part of the Judicial Career, that is to say those who belong to the Administrative Sector, which, for the sake of clarity, we will call the Civil Service. Without an authentic Career it is difficult to achieve in the short run and even in medium run appropriate levels of transparency and the real, swift application of justice. And let us not forget that without transparent justice the corresponding role of controlling Justice Systems can not be duly executed. Another aspect that can empower judicial transparency, honesty and integrity is orality in judicial processes. This is already being promoted in some matters, and, in our opinion, it should be extended to all jurisdictions. This will, nevertheless, imply new investments, new expenditures, but we will be able to have the certainty that the benefits obtained in matters of transparency will compensate sufficiently for what has been invested in orality. It is unquestionable that the oral process generates probity, integrity and transparency in a much higher degree than written judgments. In this area the role of social means of communications is on singular importance to guide public opinion to a responsible and effective execution of their role of social control. An aspect of great importance is the establishment of Codes of Judicial and Professional Ethics. In this respect we refer to what has been expressed regarding the Judicial Career; in matters attaining to lawyers, prosecutors, notaries, modern and efficacious systems of performance control must be developed as soon as possible. Probably, Professional Schools in which the whole body will participate with greater intensity than the State could help in this matter. Transparent justice will not be able to exist unless there are lawyers who perform their duties in an unquestionably correct fashion most of the time. But the primary requisite for transparency to be a reality in Central American justice is the strengthening of judicial independence. This independence has numerous enemies of all kinds; one of these is fiscal myopia, that is to say the absurd prejudice that investments in justice are not profitable for the countries. Unfortunately, this prejudice has been ignored by the international financial bodies who have understood that it is elemental; they have even found it essential to invest in justice in order to create the conditions that will allow for true, stable and sustained development. Investing in justice is nothing more than making its strong an independent, more independent with every passing day, all the less subjected to the ups and downs of politics and the pretensions of the sectors who want to control it. This battle is difficult and it is intimately tied to transparency. Only with justice that functions on the basis of principles, constitutional and legal norms, duly produced proofs, as well as justice that is transparent in its actions, will we be able to speak of authentic processes of transformation of our countries. It is not only a matter of rebuilding, it is also necessary to transform, it is necessary that we all see what is happening so that we will be able to better evaluate and improve it. This last task is the most difficult one, but let us not forget that only Power limits Power and that, if we are not successful in persuading the sectors of power that it is indispensable to strengthen the Judicial Systems, then real democracy will only be a chimera and the management of resources will never be sufficiently guaranteed. I conclude by remembering that in our countries we are fighting fiercely to obtain authentic judicial independence, we are confronting huge obstacles that we are knocking down, we are introducing a change in the mindset of our citizens so that they may understand and adhere to the principle that only independent and transparent justice can guarantee their rights, the present and their future. For more information on the workshop, contact |
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Nicaragua, May 2000 - Honduras, February 2000 - Stockholm, May 1999
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