Judges, Citizens, and a Democratic Rule of Law: Building Institutional Trustworthiness to Recover Public Trust - Núm. 5, Septiembre 2019 - Revista Latin American Legal Studies - Libros y Revistas - VLEX 839628801

Judges, Citizens, and a Democratic Rule of Law: Building Institutional Trustworthiness to Recover Public Trust

AutorLisa Hilbink
Páginas1-36
LATIN AMERICAN LEGAL STUDIES Volumen 5 (2019), pp. 165-198
ANNUAL LECTURE
JUDGES, CITIZENS, AND A DEMOCRATIC RULE OF
LAW:
BUILDING INSTITUTIONAL TRUSTWORTHINESS TO
RECOVER PUBLIC TRUST*
Lisa HiLbink
**
Abstract
This article argues that even though in Chile several successful
reforms have been made, such as the Criminal Procedure re-
form, the Labor Procedure reform and the Family courts reform,
public condence in the justice system is still very low. It is argued
that this gap should serve as an alert to legal professionals and
policymakers in Chile that it is time to rethink and adjust the
reform agenda. The article claims that the Chilean justice system
must attend to its trustworthiness, which requires that it better
incorporate and serve the fundamental principles of democracy,
under Lincoln’s famous conception of a democratic government
as one that is “of, by, and for the people”. To accomplish this task,
a new set of reforms is suggested aimed at making the justice
system more democratically trustworthy and, therefore, capable
of recovering citizens’ trust.
Key words: judges, public condence, democratic rule of law, judicial reforms.
I. INTRODUCTION
During the transition to democracy, justice reform was high on the political
agenda in Chile and in all of Latin America. Judiciaries emerged from the authoritarian
era, at best, weak and inef fective, and, at worst, complicit in repression. Since then,
much has been done around the region to make the judiciary more procedurally
correct, professional, and efcient.1 In some countries, and especially in Chile, these
*1 This article is based on the Latin American Legal Studies 2018 Annual Conference, given at Universidad
Adolfo Ibáñez, Santiago, Chile, on October 17, 2018. The author is g rateful for the comments of
the attendants, particularly the discussants Jorge Correa Sutil and Justice Sergio Muñoz. The author
also wishes to thank Valentina Salas Ramos and Bruno Franco Netto for their research assistance for
this article, and to Bianet Castellanos, Christina Ewig, Elisabeth Jay Friedman, Lorena Muñoz, and
María Francisca Zapata for their useful comments on earlier drafts.
** University of Minnesota, Twin Cities, United States (hilbink@umn.edu). Article received on June
7, 2019 and accepted for publication on July 23, 2019.
1
Domingo
&
sieDer
(2001);
Hammergren
(2007).
Lisa Hilbink
166
LATIN AMERICAN LEGAL STUDIES Volume 5 (2019)
reforms have brought notable improvements. In Chile, judicial independence scores
and other indicators of legal system functioning are now among the highest in Latin
America.2 In the World Justice Project rankings for the last ve years, Uruguay,
Costa Rica and Chile have occupied the top three places, respectively, in the Latin
American and Caribbean region.3 To be sure, regional analysts generally group Chile
with Uruguay and Costa Rica as the countries in the region possessing high levels of
rule of law, and characterize Chile as a country with a “culture of legal compliance”.
Yet, since the 1990s, public condence in the justice system in Chile has
plummeted and stagnated at very low levels.4 This is evident in both national and
cross-national surveys. In a public opinion study conducted by the UNDP in 2016,
for example, only 8% of respondents agreed that “In Chile, the judicial system
functions well”.5 In another study led by the Center for Surveys and Longitudinal
Studies of Chile’s Catholic University in 2015, 59% of those surveyed indicated
that “the current state of the judicial system in Chile is worse that it was ten years
ago”, 30% mentioned that “it’s the same as it was ten years ago”, and only 11%
responded that “it is better than it was ten years ago”6. In surveys in Latin America,
meanwhile, Chile falls consistently below the regional average of condence in the
justice system (which is not very high), and repeatedly ranks among the countries
with the lowest levels of such condence, together with Honduras and Paraguay—
countries whose levels of institutional capacity and stability are much lower than
those of Chile.7 Finally, in the world polls conducted by the Gallup organization
and reported in 2007 and 2014, Chile had the lowest judicial condence scores of
the 34 OECD countries.8
In this article, I argue that this gap—between indicators of institutional quality
and public perceptions of the justice system— should serve as an alert to legal
professionals and policymakers in Chile that it is time to rethink and adjust the reform
agenda. Over the past several decades, juridical reforms have been highly technical
in nature, aimed at updating procedural codes, modernizing existing structures, and
improving efciency, with the primary goal of attracting investment and attending to
2 See
Linzer
&
staton
(2015), p. 237.
3 See http://data.worldjus ticeproject.org/#/groups/CHL.
4 Throughout this article, I use the English terms “condence” and “trust” interchangeably. This
follows
Van Der meer
(2017), p. 4, who states, “While we may distinguish conceptually between
trust and condence, empirically the two are hardly separable.” Moreover, in Spanish, there is only
one word for both terms: conanza.
5 UNDP (2016).
6 See http://www.encuesta s.uc.cl/Docume ntos/Publicos/Arch ivos/Presentac i%C3%B3nDPP.pdf
7 See htt p://www.cl.undp.org/content/chile/es/home/presscenter/pressreleases/2016/09/09/
pnud-presenta-iv-encuesta-auditor-a-a-la-democracia.html y http://www.latinoba rometro.
org/latOnline.jsp
8 See http://www.keepeek.com/Digital-Asset-Management/oecd/governance/government-at-a-
glance-2015/citizen-satisfaction-with-public-services_gov_gla nce-2015-56-en#page2.
Annual Lecture. Judges, Citizens, and a Democratic Rule of Law
Volume 5 (2019) LATIN AMERICAN LEGAL STUDIES
167
the concerns of powerful economic sectors.9 They have been conceived and designed
from the top-down, and have focused on what goes on in or around the courtroom
between the various operators of the system10. Although by several measures, these
reforms have been quite successful in Chile11, and, to borrow a metaphor from Jorge
Correa, the judiciary, as the “Cinderella” of the Chilean political system, has been
able to rise from her poor and subordinate condition to stay and dance at the ball,12
the low condence that the Chilean public has in its justice system indicates that a
new set of reforms is needed.
Specically, what I argue in these pages is that in order to recover (or perhaps to
construct) public trust, the Chilean justice system must attend to its trustworthiness,
which requires that it better incorporate and serve the fundamental principles of
democracy, and of a democratic rule of law. Building on Abraham Lincoln’s famous
tripartite conception of a democratic government as one that is “of, by, and for the
people”,13 but adapting it somewhat,
I contend that there are three principal matters that public policymakers must
address:
- First, they should ensure that professional training and incentive structures in
the justice system enable its operators to practice and communicate a commitment to
the equal protection of fundamental rights and to a fair and dignied treatment of all
citizens—that is, that the system of justice is for the citizenry.
- Second, they should strive to recruit and appoint judges with diverse characteristics
and experiences, such that all citizens might see themselves reected and feel included in
the judiciary--that is, that the system of justice is of the citizenry.
- Third, they should construct mechanisms of legal empowerment that enable
all citizens to identify, claim, and enforce their rights—that is, that the system of
justice is by the citizenry.
Each of these issues could be the subject of its own article, but I combine them
here to emphasize the need for a paradigm shift—from a technocratic and top-down
approach to one based in the recognition that, in a democracy, citizens, in addition
to being rights-bearers, are “the source and the justication of the very claim to rule
upon which a democratic polity relies.”14 Therefore, it is incumbent upon those who
9
brinks
(2009);
gHai
&
CottreLL
(2010);
o’DonneLL
(2004).
10
goLub
(2011);
HaDfieLD
&
Weingast
(2014);
task forCe on JustiCe
(2019).
11
bLanCo, Hutt,
&
roJas
(2004);
bHansaLi
&
biebesHeimer
(2006).
12
Correa sutiL (
1999).
13 Abraham Lincoln, Gettysburg Address, 19 November, 1863. The full sentence reads: “It is rather for
us to be here dedicated to the great task remaining before us -- that from these honored dead we
take increased devotion to that cause for which they gave the last full measure of devotion -- that
we here highly resolve that these dead shall not have died in vain -- that this nation, under God,
shall have a new birth of freedom -- and that gover nment of the people, by the people, for the people, shall
not perish from the earth.”
14
o’DonneLL
(2004), p. 38.

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