Judicial Reform In The Development Agenda:  
The Case Of Guatemala

By Kara L Flanery de Tichoc

Introduction

  As developing nations, including Guatemala, undergo a process of democratic consolidation and economic liberalization, and thus reorganize their economies and their social-political organization, they also need to reform their legal systems (i.e., the entire system of laws, procedures, and courts which administer justice) and judiciaries (i.e., the actual set of courts, judges, and personnel) and adapt them to the changing needs of these new political systems and economies.  However, how to adapt and reform these legal systems and what affects these reforms will have on the ongoing and future economic development of these nations has only begun to be studied (Buscaglia and Ratliff 55; Messick 1-2).  This article will explore the need for judicial and legal reform[1] in development programs and in democratic consolidation, with Guatemala post-democratization as the focal point. 

Neoliberalization and Democratization

Most of Latin America is currently undergoing democratization and neoliberalization.  Democratic consolidation and democratization refer to the process of consolidating or strengthening a democracy once established.  In Guatemala the establishment of a democracy could be said to have occurred after the initial transition from authoritarian military rule under Oscar Humberto Mejía Victores to civilian rule under Vinicio Cerezo Arévalo in 1986.  The process of consolidation then would start with the successful transition from Cerezo to Jorge Serrano Elías in 1990. However, some scholars argue that Guatemala was not a democracy under Cerezo or even at present due to the extreme influence and interference of the military in the operation of the government (O'Donnell "Illusions" 35; Chase-Dunn and Manning 224).  Economic liberalization or neoliberalization is the economic model in favor in most of the world today and is characterized by free trade, privatization of state industries, and shrinking state subsidies for business and social programs.  This model is new to most of Latin America which had been using the economic model of import substitution industrialization (ISI), characterized by state directed industrialization and investment as well as high trade barriers.  Additionally, some states such as Guatemala and El Salvador, are also trying to break free of the legacies of recent civil wars which divided the countries for decades.  For democratic consolidation to be successful, generally, there must be protection of civil rights, a strong civil society, security, socio-economic development, and properly functioning and effective state and political institutions among other things.  State and political institutions include such diverse items as meaningful political parties, the executive, the legislature, the judiciary, regulatory bodies, an electoral system with broad participation, checks and balances between the three branches of government, as well as the rule of law.  These institutional and social structures can mediate the relationship between democratization and economic liberalization, between the state and society, as well as between the state and the market.  However, they are generally weak or missing in many Latin America states (Oxhorn and Starr 4-6, 249-50; O'Donnell "Delegative" 56-62).

Neoliberalization and Democratization in Guatemala

The processes of neoliberalization and democratization in Central America are substantially different from the processes in the other nations of Latin America.  This is because these countries have historically been both politically and economically different even though they share similar roots in Spanish conquest, colonization, independence, the influence of the Church, centralized governments, underdevelopment, dependence on the United States, as well as periods of caudillos, liberalization, and later military governments.  Differences stem from their differing geographic size, geographic proximity to the United States, the presence or absence of large indigenous populations, different experiences with democracy or the lack of it, the strength of civil society, as well as the relation and distribution of the means of production.  One of the main differences that affects these processes is the presence of oligarchical states and societies and strong military caudillos in Central America well into the twentieth century[2] when much of Latin America was experimenting with populism and democracy (Fernández Jilberto 3-4), and, therefore, the lack of a previous experience with democracy and a strong and independent civil society.  In addition, several nations in Central America recently experienced protracted civil wars -- Guatemala (1960-1996), El Salvador (1970-1992), and Nicaragua (1978-1990)[3] (Aronson 4, 31; Montgomery 101).  Due to these differing histories, most of Central America began the processes of neoliberalization and democratization in the late 1980s and early 1990s never having experienced democracy nor the rule of law (Fernández Jilberto 6).  Therefore, these nations have to wholesale build democratic institutions which never before existed and which people do not have any experience using.  Also, the extreme repression which political parties, church groups, and community organizations experienced during the civil wars, and the overwhelming fear experienced by many for decades, does not translate into a civil society ready to engage in debate or organization.  

Guatemala is underdeveloped and lags behind other nations in terms of education, health and nutrition, physical infrastructure, economic and ethnic exclusion, and institutional development, especially in the administration of justice and security apparatus (Rosenthal 9).  Guatemala has the largest economy in Central America, predominantly in agriculture.  Yet, in 2000, approximately 60 percent of the population lived in poverty (CIA).  Additionally, in 1995, two and a half percent of the farms controlled 65 percent of the agricultural land (World Bank "An Assessment").  There is great inequality[4] in Guatemala, exceeded only by Brazil and Pakistan among low- to middle-income countries.  In 1999, infant mortality was 55 per 1,000 live births, and maternal mortality was 110 per 100,000 live births.  Approximately 50 percent of children are malnourished.  Also, Guatemala has the lowest level of educational spending[5] in Latin America except for Haiti (World Bank "Country Brief").  Although good macroeconomic management[6] is needed, complementary policies designed to enhance productivity and strengthen the institutional framework which could support development are also needed.  Thus, simultaneous, coordinated, and complimentary reforms to the educational system, the health system, the judicial and legal systems, the financial system, and the technological and physical infrastructure, among others, are necessary for Guatemala to achieve sustained growth (Rosenthal 11).

In 1985, Guatemala adopted a new Constitution and elected a civilian president, only its' second[7] since the overthrow of Jacobo Arbenz in 1954.  This transition to democracy was put into action by the military government as a way to achieve political and economic stability, neither because there was popular pressure nor because the military was loosing power.  The government simply wanted to attract foreign investment and lessen pressure by international organizations and foreign countries for continuing human rights violations (Barry 4).

Dirk Kruijt argues that Guatemala's neoliberal state with its neoliberal public sector, reduced state social budget, and near absence of the state in the economy, is not the result of structural adjustment nor neoliberal reforms, but rather the result of decades of war, repression, and a political system based upon a civil-military political power balance which emerged during the 36 year civil war and continues to some extent even today (10-11, 24).  Alejandro Portes also comments that Guatemala already had a classical nineteenth century liberal capitalist economy and has never deviated from neoliberal principles; thus, what Guatemala needs for sustainable development is not the imposition of neoliberal policies (231-2).  Guatemala has never used state money to build a social net, to educate its citizenry, to build a basic and affordable health care for all, thus neoliberal policies should not call for cutting back on state involvement.  What neoliberal policies as well as the peace accords[8] call for, and what has not happened, is to increase the revenue of the government by raising taxes and having more efficient collection of taxes.  The tax ratio to Gross Domestic Product (GDP) in Guatemala is among the lowest in the world and is the lowest in Latin America.[9]  The governments of both Alvaro Arzú Irigoyen and Alfonso Portillo Cabrera did not meet the agreed upon targets for taxes.  Instead of raising income taxes, in 2001, Guatemala raised the value added tax (VAT) from ten percent to twelve percent and added products which would be taxed.  Even this meager tax increase was met with widespread protest among all sectors, partially as a result of its perceived regressive nature and partially because of elite and business opposition to any taxes (Sieder et. al. 42). 

Legal Reform in Development Programs

Judicial and legal reform are included in many development programs which are funded or organized by diverse actors including financial institutions such as the World Bank and the Inter-American Development Bank (IDB), multi-national organizations such as the United Nations Development Program (UNDP), Misión de Verificación de las Naciones Unidas en Guatemala (MINUGUA), and state based actors such as the United States Agency for International Development (USAID) and the European Union (EU).  There is broad consensus today that in order to achieve both economic development and democratic consolidation, the legal system and the judiciary needs to be developed as well (Messick 1).  Although there is a generally accepted consensus, there is little study given to why such reform is needed, what effects it will have on the overall economic and other reform programs in a developing nation, how the different reforms fit together, or how to measure the success or failure of these reforms.

Some development commentators, scholars, and practitioners believe that legal and judicial reform is a necessary part of the overall development process and that any development program will need to be comprehensive because economic, social, political, and legal development are interdependent.  This is a philosophy advocated by both Amartya Sen, the Nobel Prize economist, and James Wolfensohn, President of the World Bank.  Sen has stated his belief that legal development, like democracy, is an important and valuable part of development in and of itself, regardless of its effect on economic development.  However, he believes that there is interdependence and intertwining of economic, legal, political, and social development (9-10, 14).  In addition, the Comprehensive Development Framework approach of the World Bank emphasizes the interdependence of all elements of development to more effectively reduce poverty and achieve sustainable development (Wolfensohn). 

      Also, these same individuals believe that legal development itself must be comprehensive, addressing substantive areas of legal protections such as human rights, the environment, education, gender rights, contract rights, and property rights, among other things.  Reform must address such issues as enforcement, efficiency and corruption in the legal process (such as intimidation or bribery of judges, witnesses, and victims), and corruption in the government generally.  The idea is that reform must be broad, that simply reforming one part of the process will not have a noticeable effect.  For example, the creation of laws protecting property rights or contracts will not have the desired effect of stimulating investment, business, and the economy if people feel that the laws will not be effectively enforced by a judiciary that is corrupt, that is subject to intimidation, or even if they feel unsafe walking down the street.

       William Prillaman, in “The Judiciary and Democratic Decay in Latin America”, argues that for judicial reform to be successful, it must address  three key variables:  efficiency, independence, and access.  These variables are interdependent and necessary for democracy, sustainable economic development, and respect for the rule of law (6, 15).  Efficiency refers to the manner and speed in which the judiciary functions.  Independence can be both internal and external and must be balanced by accountability.  Access to the judiciary refers to both physical access as well as citizen perception of barriers to the system (high court fees, excess formalism, language, cultural cleavages, etc.) (16-18).  In addition, Prillaman argues that the reform process must look at all aspects of the judiciary, because reforms in one area may have unintended consequences in another.  Reforms made in a limited area may not have the intended effect because of the lack of functioning of the system as a whole.  Also, judicial reforms cannot be separated from political and economic forces in the country as a whole. Thus, judicial reform is inherently political and not technical (5-6). 

Prillaman argues that the fact that judicial reform is inherently political can be seen when reformers begin to confront or run up against entrenched interests who are benefiting under the current system or who are simply opposed to change.  Judges and judicial personnel may feel that the system is fine as it is, that reforms are cutting into or reducing their powers or spheres of influence; they also may feel they are being attacked by charges of corruption, inefficiency, or incompetence.  Political leaders in the executive branch or legislature may not see a need for strengthening the judiciary and thereby weakening their powers.  Landed elites may feel threatened by efficient court proceedings or access by the poor and indigenous populations who may be able to challenge land holdings.  Additionally, any change to the judiciary could have an effect on the balance of or separation of powers; thus, it is inherently political and typically will face opposition from entrenched interests in the all branches of government.  Therefore, Prillaman argues that the reformers must build an internal nation-wide consensus of the need for reform and on how the reform process will play out.  In addition, because of the interdependence of the various judicial processes, laws, centers of administration, etc., it is best to reform the entire system at once. 

     A separate philosophy promoted by law and economic scholars, such as Richard Posner, says that it is sufficient to focus on narrow legal reforms which will have a direct effect on the operation of business and trade. Such reforms would include the protection of property rights, the adoption of modern commercial codes, the availability and enforceability of Alternative Dispute Resolution (ADR), anti-corruption, and creating speedier processes (Messick 5; Posner 9).  These are all things which address the speed, efficiency, and predictability of the enforcement of business regulations and laws.  In this philosophy, reforms which aim to increase access to the courts, protect human rights, enforce criminal codes, or police protection are not necessary to economic development, at least in the beginning.  Economic development and growth must come first and then the government will have sufficient money to begin other reforms, and there will be a type of trickle down justice (Posner 1, 3).  However, this reform approach appears doomed to failure in Latin America because, as Prillaman and others argue, the unreformed structural components of the judicial system will eventually undermine the limited reforms made (6).

 There is generally very little scholarship on how to measure the success or failure of judicial reform efforts or the impact of the judicial system on the economy (Messick 1).  Some scholars believe that the success or failure of judicial reform can best be measured by observing a pre-determined group of qualitative and quantitative reform inputs and whether these inputs[10] produce a certain set of observable outputs[11] (Sherwood, Shepherd, and de Souza 103-5; Prillaman 6).  Prillaman argues that it is not sufficient solely to monitor inputs, such as the number of courts created, judges added, or new laws created because this tells the reformer solely what changes were made and not what effects they are having on the judicial or legal system or whether those effects are desirable.[12]  However, he also admits that there are problems measuring inputs and outputs, as certain outputs are hard to quantify or qualify because of lack of good  local court data or the difficulty reformers have in defining desired output (26-7). 

This definitional difficulty is seen in a report issued by the Washington Office on Latin America (WOLA) which revealed a lack of consensus on how to judge these judicial reform projects even within those groups which work in the field.  At the WOLA conference, various groups or individuals felt that it was more worthwhile to look at the long-term effect of these programs in building effective criminal justice systems or improving the overall administration of justice, others felt that it was better to look at short-term policy goals such as responses to specific cases of political violence since this is what governments would look at, still others thought that increased public confidence in the system may be a good indicator of success (43-5).

The World Bank and the International Monetary Fund (IMF), two funders of judicial and legal reform projects, believe that one way of measuring the effect of weak judicial systems and the absence of the rule of law on economic growth and development is to survey investor and general business perceptions of judicial corruption, the risk of nationalization, the efficiency of courts or alternative dispute resolutions, and whether these would affect their investment or rating of the country, among other items[13] (Buscaglia and Ratliff 56).  However, these surveys at best show a correlation between the overall level of confidence in the institutions, including the judiciary, and the level of investment and measures of economic performance (Messick 8).  Although there are various studies attempting to show a link between the role of the judiciary in economic development or growth, there is nothing definite.[14]  Messick states "there is no clear, empirical evidence showing the economic impact of a weak judicial system.  The most that can be said at the moment is that the weight of opinion and evidence suggests the existence of some type of relationship (9)."

The Judiciary in Guatemala

The Historical Clarification Commission (CEH), which was created by the peace process to clarify the human rights violations and acts of violence which occurred during the civil war in Guatemala, found that "the structure and nature of economic, cultural and social relations in Guatemala are marked by profound exclusion, antagonism and conflict… (CEH Conclusions, par.. 3).”  One of the Accords signed by the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG), the Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society, states that the system of justice is "one of the major structural weaknesses of the Guatemalan State," and that "[t]he antiquated legal practices, slow proceedings, absence of modern office management systems and lack of supervision of officials and employees of the judicial branch breed corruption and inefficiency (Civilian Accord, par. 8)."  

The CEH concluded that, during the conflict, repression substituted for law, replacing judicial action and its functions.  State forces and paramilitary groups accounted for 93 percent of all of the documented violations.  It determined that the judicial system "failed to guarantee the application of the law, tolerating, and even facilitating, violence," and that "impunity permeated the country . . . " (CEH Conclusions, pars. 9-10, 15).  The CEH also found that by tolerating or participating directly in impunity and concealing human rights violations, the judiciary was unable to fulfill its role as protector against the State.  This in turn led to an apathy or skepticism among the populace on reforming the judicial and legal systems.  The CEH, therefore, felt that the establishment of peace and the success of the peace process would require creating a functioning administration of justice with access for all, so that social groups and individuals could channel demands and conflict through competent state institutions (56-7).

The democratization process and the peace process in Guatemala helped to decrease state violations of civil rights by the mid-1990s.  However, the justice system by then was being overwhelmed by ever increasing levels of crime.  Armed robbery, theft, kidnapping, child abduction for illegal adoption, drug trafficking, homicides, rape, gang violence, and money laundering became and remain common (Sieder et. al. 33; Hendrix "Innovation" 368).  As happened in El Salvador after the peace accords were signed in 1992, there was a dramatic rise in ordinary and political crimes.  In a 2002 report, Hemisphere Initiatives argues that this is partially due to the lifting of the repressive apparatus of the state, the presence of very weak democratic institutions, weak economies with high unemployment, the presence of weapons, and the demobilizing of soldiers, guerrillas, and paramilitary forces (Sieder et. al. 11).  Both Hendrix and Hemisphere Initiatives argue that many of these crimes have been or are alleged to have been carried out by ex-combatants, especially military intelligence officers.  Hemisphere Initiatives states that an on-going investigation shows ties between organized crime in Guatemala and military officers as well as top political leaders in the current government, potentially including the President and President of the Congress (Sieder et. al. 9).  Hendrix points out that business leaders and government officials have stated that the high level of crime and insecurity in the country is the principle economic obstacle to growth (Hendrix "Innovation" 367, 367 n.4).  Additionally, the Guatemalan Supreme Court believes that the rise in crime is in large part due to the weak response of the judicial system, the lack of communication by the judiciary, as well as the disorganized structure of the judiciary where there is little coordination and communication between various branches of the justice system (Hendrix "Justice Centers" 817).

Guatemalan Judicial Reform

There have been two main periods of judicial reform in Guatemala.  The first period, largely sponsored by USAID, occurred in the mid to late 1980s.  This program was established with the cooperation of the Guatemalan Government and had two stated goals: first, to increase the independence and competence of the justice system in Guatemala through assistance to the courts and police; and second, to strengthen democracy in Guatemala (and in the region) by providing a "fair, efficient and accessible" justice system.  The reform included projects for training judges and other judicial personnel, improving judicial management and administration, providing institutional support for the Guatemalan bar association, and providing police training in investigative techniques (WOLA 10, 14).  This program, which was divided into two projects, one handled by Harvard and one by USAID, was financed from 1987 through 1991  (WOLA 21; Checchi 1), the period after the election of Cerezo but during the continuing civil war. 

Although there were changes in the legal system as a result of these reforms, they did not meet their established goals.  The Harvard project was able to develop a relationship with the President of the Guatemalan Supreme Court, which helped in implementing evidentiary procedures in the courts, training judicial personnel, and other reforms.  However, the reforms or proposed reforms ran into resistance from the Public Ministry and others in the government throughout the program, and never brought the Guatemalan bar association into the reform process.  Also, some of the reforms which were being directed by Harvard were being coordinated and implemented almost entirely by Harvard personnel when it would have been more effective to train local actors to take over the project sooner (Checchi 3-4).  When the Harvard project ended, there was little or no follow-up by the Guatemalan counterparts.  Thus, advances were not sustained (Hendrix "Innovation" 387).  Additionally, USAID stopped their Administration of Justice Program in Guatemala in 1991 "until the Government of Guatemala could demonstrate a more active interest in reforming the criminal justice system in Guatemala (qtd. in Hendrix "Justice Centers" 818, n.16)."

The second period of foreign aid for legal development in Guatemala began around the signing of the Peace Accords and is ongoing.  This reform is sponsored by USAID, the World Bank, the IDB, the UNDP, and others.  The World Bank development assistance to Guatemala is focused on poverty alleviation and human resource development, while maintaining an appropriate macroeconomic framework.  As part of this effort, Guatemala is implementing a public sector modernization program which includes judicial reform.  The World Bank is supporting this with a $33 million loan (World Bank "Country Brief").  The stated aim of the judicial reform project is:

to create a more effective, accessible, and credible judicial system that would foster public trust and confidence in it and improve consistency and equity in the application of the law.  . . . The project would promote the establishment of social peace and economic development, strengthen the rule of law and democratic institutions, improve citizen security, improve respect for cultural and human rights, and facilitate the implementation of the Peace Accords. (World Bank "Finances Judicial Reform")

The World Bank sought opinions through consultations and interviews with individuals in the government, the law schools and the legal community, the economic sector, and the media in Guatemala in order to ascertain what these groups felt were the core problems of justice administration.  This survey determined that poor court performance, limited access, corruption, poor institutional management, and poor perception of the Judicial Branch were the key problems.  From this survey the Bank set as the objective of the project:

to promote the participation of citizens so as to achieve a more efficient and accessible judicial system through: a) the strengthening of the   
       Judicial Branch's institutional and administrative capacity; b) the strengthening of the fight against corruption by encouraging various  
       measures to make Judicial Branch services more transparent and reliable; c) the improvement of access to justice by diversifying justice    
       administration services, experimenting with and introducing alternative mechanisms for conflict resolution, as well as the adoption of   
       services to the special characteristics of communities, and the construction of new courts and court complexes; d) the strengthening of   
       communication with stakeholders and the public, as well as the capacity of the Modernization Commission of the Judicial Branch to advise   
       on plans and policies for project implementation and the establishment of inter- and intra-institutional coordination mechanisms (World 
       Bank Project).

This project, which is ongoing, was developed and/or implemented in coordination with the IDB, the UNDP, USAID, MINUGUA, and the Governments of Sweden, Japan, Switzerland, and Canada among others.  In addition, the project was developed with the input of judges, justices of the peace, the indigenous community, the NGO sector, and the media (World Bank Anticorruption).  This judicial reform program and the overall Guatemalan development strategy is obviously meant to implement Wolfensohn's idea of a Comprehensive Development Framework in Guatemala as well as to create a consensus in Guatemalan society on the need for judicial reform or the types of reforms needed. 

In their budget document, USAID states their objectives in Guatemala as: "strengthening democracy, eradicating poverty and discrimination, and conserving the natural environment (USAID)."  They also state that modernizing the judicial system "lays the foundation for increasing access, fairness, and due process" and will restore confidence in the judiciary and establish the rule of law (USAID). 

Starting in the mid-1990s there have been real improvements in the Guatemalan judicial system.  The criminal code has been reformed to include due process protections, and the right to a public defender.  Investigations and prosecutions have been assigned to the Public Ministry (judges formerly handled much of this); trials have been made more open and public.  There have been some changes in the appointment and training of new judges.  Access to the justice system has improved, particularly for the indigenous.  There are new courts, more judges, magistrates, and justices of the peace, as well as some legal interpreters for those that do not speak Spanish.  There has been some acceptance of ADR (Sieder et. al. 33-4). 

Additionally, the creation of several Justice Centers in various cities has increased the responsiveness of the justice system to the needs of the citizenry.  These Justice Centers were created by USAID with the backing of the Guatemalan Supreme Court.  These Centers bring together the police, prosecutors, judges, public defenders, civil society, lawyers, and law schools to work together on improving the administration of justice.  The Centers attempt to break out of traditional hierarchical structures, bring groups together (and in the same building if possible), in order to reduce delay, minimize corruption, provide better accountability, build a team approach, create standard user-friendly forms, provide ADR and plea-bargaining, provide interpreters, provide culturally-sensitive education, and create case management and record handling systems which will increase the ability to find files and create useful statistics, as well as to lower corruption (Hendrix "Justice Centers" 814-15, 824-25, 839-40). However, there have been problems of coordination between the various donor agencies, especially between MINUGUA and USAID, which has lessened the effectiveness and even the potential success of these reforms (Hendrix "Justice Centers" 831-37).  Additionally, justice reform generally is being undercut and the peace process weakened by lack of progress in confronting impunity and because more thorough institutional reform is needed (Sieder et. al. 33-4).

The Guatemalan justice system remains highly inefficient and there are routine violations of due process as well as gender, ethnic, and class bias in the administration of justice.  Implementation of the new criminal code is uneven because many judges, prosecutors, and defenders lack training or are reluctant to apply it.  Access to bilingual interpreters remains low.   There is regular intimidation, interference, and corruption of judges, lawyers, prosecutors, witnesses and victims, from within and without the government (Sieder et. al. 34-35). An example of all of these problems can be found in the criminal court system in Guatemala City.  A USAID report found that approximately 90,000 criminal complaints are received per year in the capital.  Approximately one-third of these complaints were dismissed as being without merit by office clerks who have no legal training.  Only about 1,100 of the original 90,000 went on to be prosecuted.  In these cases, almost all of the witnesses and victims eventually recanted their testimony, possibly due to threats.  Successful prosecution approached zero in the remaining cases (Hendrix "Justice Centers" 838; Sieder et. al. 35).  This means that there is almost complete impunity for crime in the capital, where there are the most courts, prosecutors, and public defenders available.

The situation is worse for human rights cases.  Many human rights advocates, including the Catholic Church, have accused the military of using intimidation, bribery, and other methods of pressuring investigators, judges, and prosecutors to stall or block investigations into massacres and extra-judicial killings committed during the conflict and continuing today.  Many say that there are poderes paralelos or fuerzas ocultas working from within the military intelligence unit and including ex-military intelligence officers which operate within the justice system and public security forces intimidating judges and witnesses, carrying out assassinations and attempted assassinations of judges, human rights advocates, and others, and participating in organized crime.  These groups have obvious interest in ensuring that there is not an effective or efficient administration of justice in Guatemala and that there continues to be impunity.  Thus, these actors work to further weaken the judicial and legal system, at the same time a weak judicial and legal system is not able to combat their influence (Sieder et. al. 7-11; 36).

     All of this, along with the failure to prosecute human rights violators even when the government has acknowledged responsibility,[15] has led to extreme disenchantment with the official judicial system and privatization of justice at all levels of society.  A 1997 survey conducted in Guatemala and several other nations in the Caribbean Basin found that Guatemalans were the most unlikely to participate in political parties or community organizations.  The author attributes the high level of apathy and demobilization to the recent history of severe repression (Portes 234-35).  A 1997 survey found that 62 percent of the population had little confidence in the courts, and eighteen percent had no confidence whatsoever.  A 1998 survey found that 94 percent of the population thought that the justice system only favored the rich and powerful.  There has been a proliferation of private security firms, gun ownership, vigilantes, and extra-judicial executions, including social cleansings and lynchings (Sieder et. al. 38; Hendrix "Innovation" 400). 

What many inside Guatemala see happening is that there is ongoing impunity of the fuerzas ocultas and the poderes paralelos which undermine any social, economic, judicial, or political reform (Sieder et. al. 36).  USAID states that due to "uncertain rule of law, limited transparency in economic dealings, and the rising crime rate and generalized public security concerns, the hoped for growth in local and foreign investment has not materialized. … In this environment, donor support and continued significant levels of U.S. assistance, in areas such as justice and intelligence/security reform, continue to be crucial (USAID)."  Hendrix states that it will take several generations of changes similar to those already implemented before there can possibly be a true rule of law in Guatemala ("Justice Centers" 815).

Conclusions 

Can Judicial Reform Bring Real Change and Progress?

Reviewing the current judicial reform projects in Guatemala from the perspectives outlined above, it is hard to believe that the reforms have a chance in truly succeeding.  Although the reforms outlined above try to simultaneously address efficiency, access, and independence as Prillaman calls for, they have had little effect on these three variables.  The outputs of this broad based reform have been very limited.  Reform has not affected the crime rate, overall levels of corruption, or public trust or confidence, and has produced only two rulings against military officers accused of murder.[16]  Perhaps the only hope is that the reforms have in some way strengthened democracy as is called for in the USAID program.  However, that goal is not defined nor is it able to be tested at present.  Currently, it does not look like there has been a strengthening of democracy, but maybe the small achievements of certain justice centers could become models for new centers and methods of administration of government.  Maybe Hendrix is correct in that little by little change can be implemented and the rule of law will eventually have a chance.  However, for this to happen, judicial reform will have to be one of many successful reforms.

Today, there is an almost total lack of the rule of law in Guatemala.  This is after over sixteen years of democratization and more than six years since the Peace Accords ending the armed internal conflict were signed.  In addition, the economic situation of the country as a whole and especially for the majority of the population, has not improved even after six years of "peace," some minimal economic growth, and a lot of foreign aid and assistance.  It would therefore seem obvious that Guatemala is in need of judicial and legal reform.  However, what this paper has explored in part is whether or not the rule of law can be restored in Guatemala through this reform.  I'm undecided on what all of this means for judicial reform in Guatemala.  While I still believe that judicial reform is a necessary part of any development program and that a comprehensive development program is needed in Guatemala, I believe that there are some necessary precedents which are possibly missing - such as political will on the part of the government and the elites. 

Some commentators believe that because judicial reform is inherently political, there are certain prerequisites for it to be successful.  Judicial reform is seen as a threat to many.  There are many stakeholders including possibly any of the following:  the judges, judicial personnel, attorneys, and the organized bar, those benefiting from current rulings, the executive, and the military, among other possibilities (Messick 9-11; Prillaman 6-9).  Any of these actors may act as an obstacle to reform, and often times does so in Guatemala.  Therefore, many believe that a broad consensus for reform is needed prior to implementing any reform program (Messick 10; Prillaman 9).  What is obviously lacking on the part of the political, military, and economic elites in Guatemala is political will to reform, political will to accept democracy, democratic institutions, the rule of law, a level playing field, or even the rules of the game.  On the part of the populace the greatest obstacles, although completely understandable perhaps, are a lack of political will, political apathy, and possibly fear.  The poor and the indigenous make up a majority of the population; they could be a strong force if they could unite and channel their voice.  However, in a society where there is little example of protest succeeding or even being allowed to exist without repression or electoral politics helping anyone other than those who are elected, where the majority are illiterate and do not have enough to subsist, it is hard to imagine that their divisions will be easily overcome in the near future.  In addition, channeling mechanisms such as effective broad-based political parties or a strong civil society are nonexistent or weak.  As a result of all of these things, the needed national consensus in favor of true judicial reform is missing.

     Something international financial organizations, USAID, and others who are interested in development issues in Guatemala may want to consider is how to build political will in Guatemala on the part of the elites and how to foster it in the poor and working class through education or grass roots organizing.  If the IMF and the World Bank cannot even get Guatemala to comply with basic fiscal management policies like taxes, I'm not sure what kind of influence they can have on issues which may cut even further into the pockets and the beliefs of the elites - such as the rule of law and that everyone in society, including the elites, must be a part of the rule of law and cannot be above it, cannot change it to suit their needs, and that it has to work equally for the poor as well as the rich, the indigenous as well as the ladino.

     "In the final analysis, reform can not be imposed from the outside.  It must be the result of a process of internal dialogue and consensus building.  The role of an institution such as the World Bank … is to contribute to this dialogue by presenting technical analysis and recommendations based on considerable sectoral expertise and cross-country experience." (World Bank "Building Peace" 3) Where does this leave Guatemala?

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WORKS CITED

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Barry, Tom.  Inside Guatemala:  The Essential Guide to its Politics, Economy, Society, and Environment.  Albuquerque:  Inter-Hemispheric Education Resource Center, 1992.

 

Aronson, Cynthia J., ed. Comparative Peace Processes in Latin America. Washington, D.C.:  Woodrow Wilson International Center for Scholars, 1999.

 

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Chase-Dunn, Christopher and Susan Manning. "Globalization from Below in Guatemala." Eds. Christopher Chase-Dunn, Susanne Jonas, and Nelson Amaro. Globalization on the Ground:  Postbellum Guatemalan Democracy and Development. Lanham:  Rowman & Littlefield Pub., 2001. 207-228.

 

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Fernández Jilberto, Alex E. "Guest Editor's Introduction:  Neoliberalism, Oligarchy, and Democracy in Central America and the Caribbean." International Journal of Political Economy 30.1 (2000): 3-8.

 

Hendrix, Steven E. "Innovation in Criminal Procedure in Latin America:  Guatemala's Conversion to the Adversarial System." Southwestern Journal of Law and Trade in the Americas V:2 (1998): 365-419.

 

_______________. "Guatemalan 'Justice Centers':  The Centerpiece for Advancing Transparency, Efficiency, Due Process, and Access to Justice.” American University International Law Review 15:4 (2000): 813-67.

 

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_________________. "Illusions About Consolidation." Journal of Democracy 7.1 (Apr. 1996): 34-51.

 

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Portes, Alejandro.  "Theories of Development and Their Application to Small Countries." Eds. Christopher Chase-Dunn, Susanne Jonas, and Nelson Amaro. 229-240.

 

Posner, Richard A. "Creating a Legal Framework for Economic Development." World Bank Research Observer 13.1 (Feb. 1998): 1-11.

 

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Sherwood, Robert M., Geoffrey Shepherd, and Celso Marcos de Souza. "Judicial Systems and Economic Performance." Quarterly Review Economics & Finance 34 (special issue, 1994): 101-16.

 

Sieder, Rachel, Megan Thomas, George Vickers, and Jack Spence. Who Governs?  Guatemala Five Years After the Peace Accords. (Hereinafter Hemisphere Initiatives) Cambridge:  Hemisphere Initiatives, Jan. 2002.

 

The United States Agency for International Development. "USAID CBJ FY 2002: Guatemala Overview ." Aug. 9, 2001.  USAID. <http://www.usaid.gov/country/lac/gt/>.

 

Washington Office on Latin America.  Elusive Justice:  The U.S. Administration of Justice Program in Latin America. Washington, D.C.:  WOLA, 1990.

 

Wolfensohn, James D. "A Proposal for a Comprehensive Development Framework (A Discussion Draft): World Bank Memorandum to the Board, Management, and Staff of the World Bank Group, Jan. 21, 1999." World Bank. <http://www.worldbank.org/cdf/cdf.pdf>.

 

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__________"Guatemala:  Country Brief." May 1999. World Bank.   <http://lnweb18.worldbank.org/External/lac/lac.nsf/412657d72e240425852567d6006b2721/43145249ae1fea1d852567d90070cbd9?OpenDocument>.