Excerpt of "Beyond High Courts"

Beyond High Courts The Justice Complex in Latin America

Edited by

Matthew C. Ingram and Diana Kapiszewski

U niv e rsit y o f N ot r e Dam e Pr es s N ot re Dam e, I n d i a n a

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University of Notre Dame Press Notre Dame, Indiana 46556 undpress​.nd​.edu Copyright © 2018 by University of Notre Dame All Rights Reserved Published in the United States of America

<to come>

Library of Congress Cataloging-­­­in-­­­Publication Data

∞ This paper meets the requirements of ANSI/NISO Z39.48-­­­­1992 (Permanence of Paper).

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Contents

List of Figures and Tables

1 Introduction: Beyond High Courts

Matthew C. Ingram and Diana Kapiszewski

1

2 Reforms to the Public Prosecutor’s Office in Brazil,

Chile, and Mexico: The Role of Justice Sector Interest Groups

Azul A. Aguiar-­Aguilar

39

3 Operationalizing and Measuring Prosecutorial Independence: The Brazilian Case

Ernani Carvalho and Natália Leitão

81

4

Public Defense and Access to Justice in a Federal Context: Who Gets What, and How, in the Argentinean Provinces Catalina Smulovitz

113

5

Judging Elections: Electoral Courts and Democracy in Latin America’s Federal Systems Diana Kapiszewski, John Seth Alexander, and Robert Nyenhuis

143

6 The Electoral Court and Party Politics in Brazil

Sídia Maria Porto Lima

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vii

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vi Contents

7 Watching the Watchmen: The Role of the Brazilian Supreme Court’s Chief Justice in Checking Lower

Court Activism José Mário Wanderley Gomes Neto, Ernani Carvalho, Danilo Pacheco Fernandes, and Louise Dantas de Andrade

219

8

255

Judicial Councils in Mexico: Design, Roles, and Origins at the National and Subnational Levels Matthew C. Ingram

9 Transnational Protection of Human Rights

in Latin America

Mary L. Volcansek and Matthew C. Ingram

303

10 Comparative Law and Courts Studies: Some Reflections and Directions

Martin Shapiro

335

355

List of Contributors

Index

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C hap t e r O n e

Introduction Beyond High Courts Matthew C. Ingram and Diana Kapiszewski

This volume seeks to moves the collective conversation and research agenda of comparative judicial politics beyond the study of high courts by offering theoretically and conceptually grounded empirical analyses of a set of critical supranational, national and subnational justice sector institutions. Aimed at students of comparative legal institutions while simultaneously offering lessons for practitioners charged with designing such institutions, the volume analyzes justice sector institutions that are generally neglected in the literature, pursuing conceptual and theoretical insights to advance our understanding of the design of these justice institutions, how their form and function change over time, what causes those changes, and what consequences they have. Further, the volume examines how justice institutions function as a system, exploring institutional interactions across branches and among levels of government (subnational, national, supranational) and analyzing how they help to shape, and are shaped by, politics and judicial politics. Incorporating these institutions into the comparative judicial politics research agenda deepens our understanding of justice systems and how their component institutions can both bolster and compromise democracy and the rule of law.

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2 Matthew C. Ingram and Diana Kapiszewski

The book takes on these challenges in a specific context: Latin America. While most chapters examine one or more of the region’s large federal systems (Argentina, Brazil, and Mexico), the book also considers Chile and Venezuela, as well as the main supranational tribunal in the region, the Inter-­American Court of Human Rights (IACtHR). Indeed, the volume seeks to open a North-­South dialogue on these crucial issues: written by a mix of scholars from the United States and Latin America, the volume represents an unusual “meeting of the minds” that transcends borders, bringing vital institutions to life in an analytically rigorous way.1 The rest of this chapter introduces our efforts in more detail. The next section discusses the empirical and theoretical gaps in the existing literature on comparative judicial politics that motivated this volume.

Subsequently, we map the empirical terrain, explaining why the volume centers on Latin America, why it focuses on formal institutions, and why it explores the particular institutions it does. The fourth section discusses the empirical, conceptual, and theoretical benefits of studying the range of institutions that compose the justice complex. On the one hand, the conceptualization and measurement strategies that have been developed in the study of high courts may be useful for analyzing other justice sector institutions; on the other hand, the theories we have generated to explain key phenomena of interest—for instance, the empowerment, behavior, and independence of high courts—may “travel” less well to other institutions, suggesting the broader justice complex represents fertile ground for theoretical development. The fifth section offers a brief overview of the volume’s empirical contributions, although references thereto can be found throughout the chapter. We conclude by issuing a call to scholars of comparative legal institutions to embark upon studies of these “other” crucial institutions of justice and by suggesting some directions for future research.

Comparative Judicial Politics: The Shape of the Schola rship Once of peripheral empirical and theoretical concern, “comparative judicial politics”—the comparative study of courts and their involvement in politics and policy making—has received increasing attention

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Introduction 3

from a wide range of scholars over the last two decades. This is particularly true in the discipline of political science. Of course, a focus on institutions is nothing new for the discipline. Before the behavioralist turn in the 1950s and 1960s, law and formal institutions were staple objects of inquiry in political science analysis of the United States. Most studies, however, examined constitutional institutions and had a historical, descriptive, or abstract emphasis (Murphy and Tannenhaus 1972, 13; Whittington, Kelemen, and Caldeira 2008, 4–6). The institutional analysis that had taken off by the 1990s was quite different from that of the previous era: institutions were being studied in a more nuanced, more sophisticated, and more meaningful way. This new breed of scholarship is marked by an appreciation that institutions (in their guise as organizations) are populated by people with preferences; that how they function is shaped and constrained by a range of factors; and that they both reflect and affect politics, and both empower and constrain political actors (Hall and Taylor 1996). At least as important, the comparative study of institutions around the globe (March and Olsen 1984, Remmer 1997) formed a pillar of the institutionalist turn of the late twentieth century.

Of particular relevance to this volume, the study of judicial institutions in comparative perspective—an area of inquiry at the crossroads of the political science subfields of public law and comparative politics— was blossoming by the first decade of the twenty-­first century. Engaging contexts from Tanzania (Widner 2001) to Mongolia, South Korea, and Taiwan (Ginsburg 2003), to Argentina (e.g., Helmke 2005), to Egypt (e.g., Moustafa 2007), to Russia (e.g., Trochev 2008), and to many places in between, a wave of scholarship on courts around the world began to gain momentum. As these citations suggest, the boom included an unprecedented focus on courts in parts of the Global South. A range of foundational questions about judicial empowerment, behavior, and independence; about how courts and the elected branches of government interact; and about the increasingly important role courts play (or at least are seeking to play) in politics and policy making in certain contexts have animated this literature. Legal mobilization and access to judicial institutions have also received some attention, as have the conditions under which judicial decisions are complied with—and courts thus come to have an impact.

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4 Matthew C. Ingram and Diana Kapiszewski

For those interested in law and courts in the developing world, the fact that the comparative study of judicial institutions and judicial politics now forms an important aspect of the political science research agenda represents significant progress. Yet it is a central contention of this volume that if our ultimate goal is to understand why it has been, and continues to be, so difficult to entrench the rule of law in many parts of the world—why statutes and judge-­made law bind only selectively, why rights are infrequently real (Epp 2010), and why justice is unevenly and irregularly served—then the comparative study of courts must reach farther.

This claim is based on two linked observations about the extant literature.

First, most work explores peak judicial institutions or national “high courts”: supreme courts and constitutional courts occupy center stage.2 Far less attention has been paid to the “everyday justice” carried out by lower courts (and state courts in federal systems), and to systems of specialized courts such as labor courts, administrative courts, juvenile justice systems, electoral courts, and indigenous or tribal courts. Moreover, the form, function, and operation of the myriad other institutions that make up what this volume refers to collectively as the “justice complex”—police, public prosecutors, public defenders, ombudsmen and so on—remain relatively unknown to most U.S. political scientists.3 Also generally overlooked in the literature are key administrative bodies such as judicial councils (operating at the national and subnational levels), and supranational and regional judicial institutions (e.g., the Inter-­American Commission and Inter-­American Court of Human Rights, the Court of Justice of the Andean Community, and the Caribbean Court of Justice).

These lacunae are important to fill. Average citizens almost invariably interact with nonapex courts and other institutions making up the justice complex far more frequently than they interact with high courts, and usually before they interact with high courts (if they ever interact with them). Citizens thus develop their understanding and expectations of their country’s legal system and rule of law based on their experiences with these other institutions. Further, without understanding subnational legal institutions, we obviously cannot compare them with each other (despite the methodological benefits of doing so). Without understanding other national-­level institutions, we cannot engage in comparative cross-­national analysis. And in an increasingly globalized world, it is critical to understand the workings and influence of regional institutions.

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Introduction 5

Second and unavoidably, while high courts hardly operate in a vacuum, we understand very little about institutional interactions within the justice complex. Interactions among courts are not clearly understood. For instance, we have not systematically examined how the decisions of lower courts aggregate to push and pull on high courts, or how the rulings of lower-­level specialized courts (e.g., electoral courts) aggregate to influence higher-­level specialized courts—or supreme or constitutional courts. Likewise, we have yet to grasp how high court rulings “trickle down” to lower courts (as they do in both common and civil law systems), or under what conditions lower courts are willing and able to follow the lead of the apex institution. Moreover, despite being quintessentially passive institutions—that is, in most contexts, courts can do very little until an issue, dispute, or conflict is brought to them—once activated, courts do not process cases in isolation, yet we know surprisingly little about the role the other institutions making up the justice complex play in shaping how courts carry out their assigned functions, and vice versa.4 In order for their functions to be properly understood, all of the institutions that compose the justice sector must be understood and studied as what they are: parts of a larger system.

In encouraging the study of judicial politics to move “beyond high courts,” our objective is to press the field away from an exclusive focus on high courts (not toward an exclusive focus on non–high courts), and simultaneously to encourage more attention to the ways in which justice institutions operate interdependently (rather than in isolation). Continuing to study high courts is critical in order to fully address the interactive and multilevel nature of the justice complex. Our point is simply that we need to also analyze other institutions of justice at all levels of domestic government, as well as international justice sector institutions, and to study the justice complex as a system of institutions.

There are of course important exceptions to the generalizations just offered about gaps in our knowledge. To mention just a few examples from Latin America, the region on which this volume focuses, Chavez (2003, 2004), Beer (2006), and Ingram (2012, 2013a, 2013b, 2016) have studied lower courts in the region; Eisenstadt (2002, 2004) has examined Mexico’s electoral court (and other electoral institutions); and Pasqualucci (2003) and Huneeus (2010) have explored the Inter-­American Court of Human Rights. Hammergren (2002), Finkel (2008), and Garoupa and

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6 Matthew C. Ingram and Diana Kapiszewski

Ginsburg (2009) have studied judicial councils in the region, and Ingram (2012, 2016) and Rios-­Figueroa and Pozas-­Loyo (2011) have done so in Mexico and Brazil. Sadek and Cavalcanti (2003) and McAllister (2008) have examined the powerful public prosecutor’s office in Brazil, and Brinks (2007), Ungar (2010), and Sabet (2012) have studied the police in the Southern Cone and Mexico. In addition, Uggla (2004) and Moreno (2016) have described how ombuds offices function across the region.

Yet overall, the scholarly attention paid to institutions of justice beyond high courts and to institutional interactions within national justice complexes (and between those complexes and regional or international justices systems) pales in comparison to the attention focused solely on high courts—at least with regard to the Global South. While a quarter of a century ago famed judicial scholar Martin Shapiro implored judicial scholars to study “any law but constitutional law, any court but the Supreme Court, and any country but the United States” (1989), we have taken meaningful steps toward heeding only part of his advice.

These analytic choices have significant empirical, conceptual, and theoretical consequences. First, by leaving the overwhelming majority of the justice complex underexamined, emerging scholarship on comparative legal institutions offers an incomplete and potentially misleading empirical portrait of the politics of justice in the Global South. It seems clear that we cannot simply assume that other justice sector institutions mirror the empowerment, authority, or independence of high courts: characterizations of judicial politics in a polity formed on the basis of what is known about its high court are bound to be inaccurate.

Our lack of a solid empirical understanding of the form and function of those other institutions renders us underprepared to carefully conceptualize key outcomes of interest—institutional accessibility, accountability, authority, autonomy, capacity, effectiveness, efficiency—or performance, power, or quality more generally. Moreover, justice sector institutions rarely (if ever) act in isolation, and if we do not understand the justice complex as a system or network, we remain unenlightened about how the function, performance, and effects of some institutions of justice condition the function, performance, and effects of others.

Further, these descriptive and conceptual lacunae prevent us from theorizing about critical institutional processes and qualities—beginning to explain why justice sector institutions “score” as they do on the important

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Introduction 7

attributes just mentioned and why they perform and function (or misfunction) as they do. More broadly, we remain largely ignorant of whether explanations developed to account for such attributes of high courts can account for those same qualities in other justice institutions. Given the important differences in design and objectives among justice sector institutions, there are good reasons to predict that they may not. We have a profound interest, as scholars and human beings, in understanding why police in some contexts engage in extrajudicial killings while others do not; why some prosecutors can act independently while others cannot; why public defenders are effective in some polities and not in others.

The Empirical Terrain: Formal Justice Sector Institutions in Latin America Before discussing the multiple benefits of studying a broad range of institutions of justice, we clarify and justify the empirical parameters of the studies included here. First, we explain why the volume focuses on Latin America. Second, we discuss what is gained—and lost—by focusing our comparative study on formal institutions of justice, rather than (also) examining law and legal institutions “in action.” Finally, we outline why we chose to study the particular institutions under analysis here.

Why Latin America?

There are strong empirical and theoretical reasons for focusing on the multilevel justice complex in Latin America—and, in particular, examining its largest federal countries. First, examining countries from just one world region affords our cross-­national analyses greater inferential leverage, allowing them to hold somewhat constant a range of factors, such as colonial legacy, type of legal system, and certain cultural factors, that could potentially drive cross-­national variation.5 Focusing on a single region also lends the volume coherence, allowing the authors and the chapters to speak to each other more easily. Furthermore, Argentina, Brazil, and Mexico, which receive sustained attention in the book, are Latin America’s largest democracies and markets, accounting for more than two thirds of the region’s population and economic output

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8 Matthew C. Ingram and Diana Kapiszewski

(ECLAC 2010). Their regional—and increasingly global—prominence recommends them as targets of inquiry. In addition, these countries exhibit the kinds of institutional variation that we seek to understand, at the subnational level (as Smulovitz and Ingram examine, for instance), and cross-­nationally (as Aguiar-­Aguilar, Carvalho and Leitão, and Kapiszewski et al. explore). Further, there are likely to be more institutional interactions of the type that interest us, and these interactions are likely to be more evident and relevant, in large federal systems. In short, examining legal institutions in these polities, plus the IACtHR, has substantive appeal, allows us to paint a compelling empirical portrait, and also has significant methodological upsides.

Moreover, a large, vibrant, and theoretically generative subset of comparative judicial politics scholarship examines Latin America, giving us a great deal of theory on which to draw as we seek to understand why institutions of justice function as they do.6 Indeed, the five polities the volume examines most closely have been the central focus of the literature on judicial politics in the region (see Kapiszewski and Taylor 2008).

While the focus on large, federal countries in the existing literature is understandable, it bears noting that analytic findings concerning high courts in large federal countries may be especially unrepresentative of the overall arc of justice sector politics in such polities, where other institutions (including subnational institutions) are likely to be quite important. In sum, the countries on which the volume centers are particularly relevant ones to use to evaluate whether strategies for conceptualizing and measuring, and explanations developed to account for, the empowerment, activation, behavior, and impact of high courts, are relevant to other institutions of justice.

Law on the Books vs. Law in Action: Why Examine Formal Institutions?

An increasingly standard distinction drawn by political scientists and legal scholars is that between de jure institutional features and rules as they are formally written down on paper, and de facto institutional qualities and performance—how institutions actually are and act (Black’s Law Dictionary, 427, 437; see also Feld and Voigt 2003; Beer 2003; Helmke and Levitsky 2006; Rios-­Figueroa 2006; Rios-­Figueroa and Staton

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Introduction 9

2014; Melton and Ginsburg 2013). While most of the empirical work in this volume—like much of the comparative judicial politics literature— examines the formal, de jure aspects of justice institutions, we recognize that focus is incomplete (Prillaman 2003; O’Donnell 2006; Laver 2012).

Understanding the way institutions actually function—how malleable and consequential they actually are, how they actually distribute power, and whether they actually deliver justice—is critically important. Scholars focusing on de jure institutions and those who read their work must keep in mind that such research reveals only part of the politics of legal institutions. As such, future research that pays greater attention to de facto dynamics will make a welcome and valuable contribution.

Nonetheless, we hold that there are several important reasons for exploring de jure institutions, and for making them the starting point in comparative institutional analysis (see also Laver 2012). De jure institutions constitute the public, documented, concrete product of a political process: political actors agree to set down on paper the particular features of an institution and the procedures by which it will function.

Indeed, politicians fight pitched battles over de jure institutions: elections are won and lost, and careers made and broken, over how formal institutions will be structured. Constitutional processes take years to complete because of the haggling and controversy that surround them.

If the design of justice sector institutions is so important to those who govern, the formal outcome of this process should represent an important object of academic inquiry. Moreover, analyzing those products allows us to learn not only about the institution but about the dynamics of the design process and about the actors who participated in it. Understanding institutions’ formal foundations is also necessary to understand how they might influence society: grasping the formal underpinning of key justice sector institutions allows for the development of hypotheses about the effects such institutions could have on important outcomes such as political stability, rights, and economic development.

In addition, the concern that generally underlies distinctions between de jure institutions and de facto qualities and behaviors is that the latter fall short of the standards or aspirations set by the former. In our area of study, the assumption is generally that justice sector institutions are actually harder to access, function less independently, are less powerful, and so on, than formal institutional rules would dictate. Thus if there are

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10 Matthew C. Ingram and Diana Kapiszewski

dramatic and patent weaknesses in de jure institutions, de facto qualities, behaviors, and practices are unlikely to counteract them. For example, if there are no formal provisions for judicial or prosecutorial independence—or worse, formal provisions that establish the dependence of these institutions—it is unlikely that they will be independent in practice. Put more starkly and more broadly, well-­designed legal institutions may be attended by practices inconsistent with a strong rule of law, but poorly designed institutions are unlikely to coexist with practices more consistent with the rule of law. We can only evaluate the nature and size of the gap between what rules dictate (de jure institutions) and what actually happens (de facto qualities and behaviors) if we fully understand de jure institutions, that is, their putative or normative form and function.

Assessing the gaps between formal institutions and informal politics (and pathologies) such as patronage, clientelism, and corruption is an important enterprise in its own right. Yet evaluating the gap is also a crucial prerequisite for cross-­institutional and cross-­national comparison: if an ombuds office hews much more closely to constitutional strictures in form and function than does a public prosecutor’s office (PPO), it is critical that we know why. For all of these reasons, we believe that comparative institutional analysis should begin—although certainly not end—with close examinations of formal institutions.

Why Focus on the Institutions of Justice Examined Here?

It would, of course, be impossible for a single volume to examine every institution of justice in Latin America. We chose to examine the particular set of institutions under analysis here—the PPO, public defender’s office (PDO), high electoral courts, lower courts, judicial councils, and the IACtHR—for several reasons. First, these institutions are increasingly active on national political stages. Further, there is cross-­national variation with regard to where these institutions are located within the justice sector. For instance, the PPO is an independent branch of government in Brazil, while it is located within the executive branch in Mexico and other countries. Similarly, the institutional location of the PDO at the subnational level in Argentina varies across provinces. This heterogeneity offers us an opportunity to identify patterns and explain variation in the structure of institutional interactions. Further, examining these

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Introduction 11

institutions allows us to consider various types of law (e.g., criminal, civil, constitutional, administrative, electoral, and transnational/international), potentially increasing the generalizability of our findings.

Several other features of the specific institutions we study also make them excellent objects of inquiry. For instance, given their involvement in the area of criminal law, PPOs and PDOs run interference at the sharpest edge of the state. Accordingly, by examining how these institutions mete out justice in post-­transition Latin America, we capture institutional activity with substantial relevance for the quality of democratic citizenship (see, for example, Mendez, O’Donnell, Pinheiro 1999), and significant potential to shape how citizens experience and view democracy. For their part, electoral courts sit squarely at the intersection of law and politics, offering a unique window on the long-­standing question of the role of courts in democracy (see Hilbink 2008 for an excellent review of the debate). Analyzing lower courts offers us the chance to explore the internal independence of Latin American judiciaries (i.e., lower courts’ autonomy from apex courts), a facet of independence that is explored less often than their external independence (e.g., courts’ autonomy from political actors). Studying judicial councils offers additional insight into the management or administration of lower courts in particular, and elucidates the important implications that management of (and judicial councils’ interaction with) those courts can have for their operation. Finally, examining the IACtHR allows us to grapple with fascinating and contentious issues of legal sovereignty. The set of institutions we analyze, in short, have great potential—operating interactively with each other as a system—to affect politics and polities across Latin America, and thus offer a critical window on the political and social roles that legal institutions wittingly and unwittingly play.

Disaggregating the Justice Complex: Empirical, Conceptual , and Theoretical Benefits A single contention underlies this volume’s efforts to develop and advance a more encompassing and holistic approach to the analysis of legal institutions, and to encourage scholars to adopt it: engaging in

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