Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s

Introduction. Latin America and Judicial Reform: Why Would Politicians Enact Institutional Reforms That Appear to Limit Their Own Political Power?

Introduction Latin America and Judicial Reform: Why Would Politicians Enact Institutional Reforms That Appear to Limit Their Own Political Power? Judicial reform, defined here as institutional changes claiming to increase the independence and authority of the judicial branch, swept Latin America in the 1990s. Argentina, Peru, and Mexico, for example, each engaged in constitutional revisions that appeared to empower their judiciaries . Following their respective judicial reforms, high courts in each country were asked to decide the constitutionality of a ruling party’s attempt to manipulate political rules. In Argentina, the Supreme Court refused to rule against the president; in Peru, the Constitutional Court justices who did so were fired and their decision ignored. The Mexican Supreme Court, on the other hand, ruled against that country’s longstanding dominant party, and its decision was accepted and enforced. Politicians in each of these countries had introduced what appeared to be very similar judicial reforms—yet these three court cases present extreme variations in judicial power. Why do some instances of judicial reform succeed at establishing a judiciary able to constrain elected leaders while others fail to do so? Even more striking, why would politicians who previously enjoyed decision-making powers unfettered by judicial constraints willfully engage in reforms that place limits on their own political power? 1 2 Introduction This book attempts to answer this question by analyzing the judicial reform experiences of three Latin American countries: Argentina, Peru, and Mexico. As was typical throughout the region, these countries’ judicial reforms began with constitutional revisions consisting of a package of institutional changes dramatically altering judicial structures. However, passage of constitutional reforms is but the first step in the process of meaningful judicial reform. In Latin America, judicial reform is a twostage process of initiation (the passage of constitutional revisions) followed by implementation (the enactment of congressional legislation). The crucial point is that while passage of constitutional reforms may signal an intent to increase judicial autonomy, the real outcome of judicial reform is determined by the details and vigor of the implementing legislation . In our three cases, while Mexico’s judicial reform was meaningfully implemented, Argentina’s and Peru’s were not. This book is an attempt to explain variations in the implementation of Latin America’s judicial reforms and, thus, variations in the power of each country’s postreform judiciary. Historically, the judiciaries of Latin America have been impotent and unable to prevent even the most blatant constitutional violations by the prevailing political elite.1 Repeatedly trampled on and ignored by politicians , the courts of Latin America were also routinely neglected by scholars. However, as elected governments replaced authoritarian regimes across the globe at the end of the twentieth century, interest in the judiciary in the developing world underwent a dramatic reversal. Latin American courts, after decades of academic neglect, have today become a major concern of research in the region.2 Democratic theorists, viewing institutional reform as key to the consolidation of “third-wave” democracies , have focused on the development of judicial counterweights capable of imposing limits on elected leaders and upholding the rule of law (Schedler, Diamond, and Plattner 1999; Larkins 1996; Stotzky 1993). Multilateral development agencies have published numerous works stressing the need to foster a legal environment conducive to the development of a market economy (Jarquín and Carrillo 1998; Rowat, Malik, and Dakolias 1995). Additional scholarly work has examined the international promotion of other aspects of judicial reform, such as access to justice and judicial efficiency in Latin America (United States Agency for International Development 2002; Domingo and Sieder 2001). Introduction 3 There are now also a number of academic studies describing a particular country’s judiciary (Mexico: Domingo 2000 and Finkel 2003; Peru: Hammergren 1998a; El Salvador: Popkin 2000; Chile: Hilbink 2003). Research on Argentina has been especially abundant. Bill-Chavez examines two Argentine provinces and argues that divided government is key for the development of judicial autonomy (2003). Helmke’s analysis of the Argentine Supreme Court during the years 1976–95 demonstrates that antigovernment rulings cluster at the end of both weak democratic and weak nondemocratic governments alike (2002). Iaryczower, Spiller, and Tomassi, examining Argentina between 1935 and 1998, show that the probability of a justice voting against the government increases the less aligned the justice is with the president but decreases the stronger the president’s control over the legislature (2002). Using the case of Mexico, Staton argues that supreme courts selectively...