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The history of an orphaned institution

Sometime in the year 2000 the percentage of prisoners awaiting trial or sentencing in El Salvador’s jails will drop to around 50 percent.

There will be no celebrations to mark this milestone. Conditions in El Salvador’s prisons preclude self-congratulation, and public opinion is far too preoccupied with the country’s high level of violent crime.

Yet it will be a remarkable achievement. According to Walter Aquino, chief of the unsentenced prisoners department in El Salvador’s jail system, seven years ago the country was holding some 12,000 prisoners in a system designed for a maximum of 7,000.

Altogether, 90 percent of the country’s inmates were improperly awaiting sentencing, meaning that they had been held without trial for longer than the law allowed for their alleged crimes. Why? The answers tended to have a generic quality: lost documents, absent witnesses, botched investigations, missing defense lawyers, or simply the arrival of a more urgent case on a judge’s desk.

This was by no means unusual for a Latin American country. The percentage of unsentenced prisoners has long been one of the more graphic indicators of the inefficiency of judicial systems throughout the region. In a 1998 study, Human Rights Watch reported that on average, 70 percent of all prisoners in Latin America and the Caribbean are awaiting sentencing. With few exceptions, serious overcrowding is the norm.

So what is going on in El Salvador? The short answer is that in April 1998 the country’s Legislative Assembly scrapped a criminal code and a code of criminal procedure that had been in effect since 1860 and replaced them with entirely new ones. The new procedures are so much more efficient that the courts are finally clearing out the backlog of pending cases. Thousands of inmates who should not have been in jail have been released, and new suspects are being sentenced or released, on average within six months of arrest.

But changes in the prisons are a relatively small part of a much bigger shift in the way justice is understood and administered in El Salvador. The means of access to the courts, the role of judges and other judicial officials, the definition of crimes, and the way trials are conducted have all been radically transformed in recent years. The financial resources of the institutions that make up the judicial system, as well as the training and compensation of those who work in them, have also been dramatically upgraded.

Why did El Salvador wait so long to tackle these problems? How did its courts become so dysfunctional in the first place? And why are things improving now? The answers, which can be traced to the first half of the 19th century, apply in some degree to every Latin American country.

A distinguished heritage. With the exception of former British colonies, virtually every country in Latin America and the Caribbean can trace its judicial system to ancient Rome. That is where the fundamental concepts of what is known as the civil law tradition were articulated. (Britain and its former colonies use what is known as the common-law tradition.) In the mid-19th century, when the newly independent Latin nations were defining their legal systems, many turned to the Napoleonic Code of 1804, which had formalized the Roman civil law in a set of detailed statutes. That code was translated into Spanish by the Venezuelan-born scholar Andrés Bello and adopted as the Chilean Civil Code in 1855. El Salvador’s civil code, adopted in 1860 and still partly in effect today, was based on Bello’s translation, as were those of many other Latin American countries.

In its 19th-century form, civil law had a number of distinctive features. Judges did not “make law” by issuing verdicts that were then used as precedents by other judges; rather, they were expected to merely apply statutes that had been defined by legal scholars and passed by national legislators. In many civil law countries judges were basically civil servants: they began their careers in minor courts soon after receiving a law degree and gradually rose through the ranks. In criminal cases, judges had what is called an “inquisitorial” role, where they both conducted the criminal investigation and issued a verdict. Public defenders and prosecutors had limited or nonexistent roles.

Finally, judicial procedures in civil law countries were based on a “written” process. Virtually every step in a legal proceeding was performed through the drafting and submission of briefs to court clerks or secretaries who subsequently presented them to a judge. Judges reviewed these documents and issued written directives or decisions, often without personally interviewing the parties or witnesses in a case.

The orphan branch. Like other legal systems, the civil law tradition has evolved significantly since the 19th century. In the countries of Continental Europe, for example, civil law systems have been revised and expanded to reflect modern legal, technical and social realities. Civil law procedures have also changed to reflect the increased efficiency required by industrialized economies.

In Latin America, however, several factors held back this evolution. In countries with unstable and authoritarian governments, frequent military interventions and entrenched patterns of political patronage, the judiciary never had a chance to emerge as a strong and independent institution. Instead of providing a check on the power of the executive and legislative branches, in many countries the judiciary became openly subservient to the reigning political power. Governments interfered openly in the naming of Supreme Court justices, or they simply replaced the entire court with malleable appointees. Lower court appointments were often doled out as rewards to political supporters.

The low status of the judiciary was reflected in the allocation of government funds. Miserable pay became the norm for judicial officials in many countries, and the lack of court facilities and resources made it impossible to keep up with demand for judicial services. When these factors combined with the inherently opaque system of written procedures, the result was a system that created incentives for influence-peddling and corruption. People who could not afford to pay bribes or hire well-connected lawyers were effectively denied access to justice. But for those with political power or economic means necessary to influence a judge, the system could actually work quite well. This last fact was crucial, because it meant that ruling elites had little incentive to embrace judicial reform.

War as catalyst. It took one of Latin America’s bloodiest civil wars to push these problems to the breaking point in El Salvador. In 1983, while the country was still in the early stages of a conflict that would claim an estimated 70,000 lives, a small group of lawyers and legal scholars began to argue that El Salvador’s judicial system was due for an overhaul. The government set up a commission to examine the civil code and propose revisions, and a new constitution adopted in 1983 established a National Judicial Council to help train and select judges. In 1990, President Alfredo Cristiani named René Hernández Valiente as minister of justice and urged him to pursue the matter further. Hernández’s staff soon sent proposals to the assembly for new laws governing criminal, family, juvenile and sentencing issues.

Despite the gathering momentum for change, El Salvador’s judicial and legal establishment showed little enthusiasm for the proposals. Indeed, the reform movement might never have prospered had it not been for the peace agreements signed between the government and the opposing Frente Farabundo Martí de Liberación Nacional(FMLN) in 1992. By then, the full horror of the human rights violations committed during the war was apparent to both Salvadoran society and the international community. In 1993, an independent Truth Commission formed as part of the peace agreements issued a report assessing responsibility for the wartime crimes. The report argued that because of its failure to prevent impunity, El Salvador’s judicial system shared responsibility for the tragedy of the war. “El Salvador has no system for the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably,” the report’s authors concluded.

The report merely echoed what millions of Salvadorans had known for years. The judicial system was broken. If El Salvador was ever to recover from the war and become a true democracy, it would have to start by fixing the courts.

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