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The Crisis of the Judiciary System and [alternate] dipute for resolution procedures
Eva Guerón
The crisis of the Venezuelan JudiciaryIn the context of the generalized questioning of the Venezuelan political system's institutions, the judiciary has been the subject of the most strong criticism, joined to reiterated claims for its reform. "There is no doubt that the country needs to face the problem of the Judiciary's loss of prestige, both from the standpoint of its legal ability as from that of its ethics." In effect, it is urgent to fill the gap created by the judiciary's crisis. On one level, the crisis is the result of the courts' overload. On another one, due to [its] high cost. On the most important level, however, it is the consequence of the people's mistrust of the legal system.. One must "reduce the parties" costs and loss of time… provide accessible forums… facilitate the quick resolution of disputes being damaging to the community or to the families' lives… increase public satisfaction with the judiciary… promote solutions being fit to the parties' needs [and] increase the rate of voluntary complying… teach the public to test processes being more efficient than violence or litigation to settle their differences… [and] restore the influence of neighborhood and local values, and community cohesion". It becomes also indispensable that the low income sectors be offered, not only flexible methods to solve disputes, but also procedures excluding arbitrariness and authoritarianism [and] promote the development of positive democratic attitudes and social values, such as initiative, participation, potentiation and solidarity. These quotations express come of the main concerns as to justice administration in Venezuela. The remarkable thing is, however, that the last three authors do not refer themselves to this country but to other so dissimilar places as South Africa, the United Sates of America and Ecuador. In fact, similar diagnoses and intents to find alternate solutions are found in numerous societies in all continents. This finding does not redeem the Venezuelan judiciary. Its deficiencies show huge proportions: lets us just recall that approximately 85% of the population lacks access to a justice that it perceives as someone else's, as hostile, unpayable and incomprehensible; that there are more than 20,000 prison inmates and tens of thousands of cases awaiting sentence and that any contact with the judiciary implies a lot of insecurity, the long delays and the high costs -legitimate and illegitimate- caused by courts with great shortages in human resources, materials and budget allowances, bound to archaic procedures, mostly concentrated in Caracas, in precarious facilities. On another set, in spite of the fact that one may not blame the judiciary for the country's current ungovernableness, the political consequences of the other institutions' discredit are magnified due to the lessened credibility of the judiciary as a trustworthy, valid and independent instance to process the claims and the demands of the people. But if do not wish to insinuate, as if satisfied with the fact that it could have been worse, that the deficiencies of Venezuelan justice represent mere differences of degree as compared with the defects found in many other countries, I do want to suggest that if so many judiciary systems are being questioned, then at least some of the problems and defects that we criticize and suffer in Venezuela one may not attribute solely to "native idiosyncrasy" the ineptitude or corruption of judges and lawyers, the inefficacy and inefficiency of domestic institutions and procedures or the shortage of infrastructure and resources. What is then the reason for the showing of so many so similar problems and concerns in so many different places? Without discarding the influence and imitation of schemes, it is possible to offer some ideas that could explain why, in the most diverse countries, including many that we perceive as models, is there a search of new procedures to resolve disputes offering an alternative to the courts or to the unilateral reaction, be it by means of violence or as a form of reaction and resignation. Judiciary systems and alternate procedures for dispute resolution The alternate procedures as a perspective. In view of the fact that disagreements and disputes are akin to normal cohabitation and, accordingly, almost inevitable, traditional societies and communities have developed procedures being consistent with their values, to resolve disputes between their members. In this sense, there have always been "alternate procedures" for conciliation, mediation and arbitration on the part of families, priests or other figures having authority or on that of the community in its whole, aimed at avoiding both confrontations as the need to recur to existing superior -and outside- awarding instances. The creation and expansion of the modern State with its national institutions and standards, the triumph of individualism, as well as the sociopolitical transformations unlashed by the scientific-technological revolution, did weaken or even voided the communitarian links and, consequently, the efficacy of their peculiar modalities of dispute resolution, The complexity, novelty and interdependence of contemporary problems contributed to increase the motives and opportunities for disputes. These changes increased the propensity to go to court to resolve any kind of dispute, including those that were settled within the most intimate family limits. Judiciary systems, with their consubstantiated abidance to meticulous procedures, were not able to process such a high volume and variety of claims, leading to delays, backlogs of cases and an increase in the cost of justice administration, both for the State and for the individuals. The increasing costs and accompanying technicalities of specialization and professionalization turned into obstacles for those being affected, mostly those with scarce resources, in a way that, in he absence of other means, an ever greater proportion of the people lacks such access to justice. Access to courts, besides, does not warrant justice. On the one hand, this means that the most pure judgments issued with delay may lose vigor and even worsen a situation of injustice. On another hand, however, it alludes to a more fundamental concern for the quality of judicial decisions, no matter how expedited they may be: firs because there is abundant circumstantial evidence, on a world level, that the weakest parties turn out typically being disfavored in trials; second, because the very same nature of the judgment, based on the application of a norm to determine who is right or who is guilty, often produces decisions that do not fit the needs of those being concerned, mostly in cases of disputes between persons who wish to continue treating themselves -within the family, the community or the workplace, for instance. Litigation propitiates a style of arguing that does not lead to the finding of solutions being able to satisfy both parties and the decision won by one and lost by the other tends to worsen the relationship between the parties or even to end it. All these considerations around justice lead to the conclusion that it is necessary to look for other alternatives -to rediscover and adapt ancient procedures, to improve the existing ones or to invent others. This conclusion, however, is often linked to a more complex set of problems. The inaccessibilty of judiciary systems, the mistrust of their procedures and the doubts on the ability of their results do contribute to the negative perception of political systems and governments -their inefficiency or inefficacy, as well as their remoteness from specific needs of society and of the individuals -with the consequent nourishing of a feeling of impotence, of skepticism and people's apathy. This picture, part of the "governableness crisis" being shown on a world level, is a further justification for the creation of different procedures for dispute resolution. These have the potential to offer new modalities of participation to the communities and citizens and they provide opportunity for learning and enable people to become "co-owners" of the decisions affecting their lives. In other words, they have the power to boost transformation, when promoting self-esteem and individual empowerment and, at the same time, respect for the others. It would seem, then that in a world of most marked contrasts, historical asynchronisms and specificities, some of the judiciary systems' features and of the sociopolitical changes leave room for diagnoses and some similar programmatic proposals, resulting in what is being called the movement of Alternate Dispute Resolution Procedures (ADRP) now being spread on a world level. Procedures and questions.- The search for alternatives has generated a wide array of procedures. Some of them are being developed in free community centers depending on voluntary work; others are being offered by non profit organizations. Some are totally independent from the judiciary while others do maintain close links with the courts, turning into their complementary and even adjoined means. Perhaps the most thorough example of this kind of relationship is the "Multiple Doors Tribunal" based on a preliminary evaluation to send the dispute to mediation, arbitration, a conventional trial or any of the other available "hybrid" modalities, such as the private trial or some sorts of arbitration, they look like ordinary courts, while others, such as mediation, are characterized by informality, the absence of a stiff structure and the use of criteria not being necessarily circumscribed to a legal set of standards. Finally, some ADRPs imply adjudging, that is to say a third party's -a judge's or an arbitrator's, for instance- award, while others ensure that the affected parties -and not a third party- draft their own decision in cooperation. Even if all these variables have their explained origin and their justification, analysts and observers do usually concur in saying that mediation, taken in the last sense, has the greatest potential to reach many -if not all- the objectives that impelled the expansion of the ADRPs. The alternative procedures and varied forms by them assumed bring numerous questions and dilemmas and have led to extensive debates, both among their critics and defenders, as among the very same promoters of the "movement", on their significance and implications, their advantages and risks: Is it a matter of privatizing justice? Are the poor not just given second class justice and those who can afford it, first class justice? Is there not a search for peace at the expense of change? To what extent are the sought objectives reached? It seems ever more evident, however, that the answers to questions such as these depend more on the ADRPs' instrumentation that on their intrinsic qualities and that they effectively reduce the cost and time being required for resolution of the disputes, they produce more satisfactory solutions for the parties, they propitiate voluntary compliance and have the potential to promote change in persons and communities. The Venezuelan Judiciary system's reform projects and the ADRPs The sharpening of the judiciary's crisis is impelling several reform initiatives meant to overcome its notorious deficiencies. First, there are several projects and proposals to amend the normative frame. At the highest level, we have the proposals for constitutional amendment related to the judiciary being reviewed by the Congress Commission for the Amendment of the Constitution. There is a study, also, of a reform of the Code of Criminal Procedure and of the Organic Law of the Council of the Judiciary and other proposals to regulate the judiciary system's operation, such as the Organic Law of the Judiciary, the Organic Law of Judicial Career and the Organic Law of the Supreme Court of Justice. On another hand, the Judiciary's Infrastructure Support Project being developed linked to an agreement between the Council of the Judiciary and the World Bank starts from the bottom to the top and puts its greater emphasis in the court's reform: a modernization of its physical and technological infrastructure and, perhaps most of all, the modernization and capacitation of its human resources. One is dealing with an approach that one could call gradual but at the same time realistically radical, since it does not call for a constitutional nor legislative amendment, and according to the shape it finally gets, it may a prerequisite in order that the legal norms eventually approved may be actualized through judicial praxis. More recently, in view of the slowness of these initiatives and of the skepticism as to their results, some sectors of civil society began to promote the filing, by means of popular initiative, of a bill of judicial emergency to face the "Judiciary's current state of inefficiency and collapse". There is the hope and possibility that, with work, political will and some degree of luck, these initiatives may be able to correct the main vices and defects of the judiciary and lead it to modernization. However, as drawn from international experience, not even under the best of all imaginable scenarios may one achieve an adequate solution to the problems being faced by judiciary systems if measures are not taken to implant and impel alternate procedures for dispute resolution. To this date there are some motives for optimism in this environment but, unfortunately, too little. Although Venezuelan legislation provides for arbitration and does not preclude mediation -under the figure of procedural auto-composition-, it does not foster them. In fact, these procedures have been sub-utilized in practice and there has not been any proposal -nor even a development- for other alternative means with the unique and most polemized exception of the justice of the peace. Although this institution, still under implantation process, has the potential to turn into a singular Venezuelan contribution to the ADRPs, it has been debated and often misinterpreted by its opponents and even by those presumably backing it. As to reform initiatives, the Council of the Judiciary/World Bank project provides for technical assistance to "identify and evaluate the effectiveness and the impact" of ADRPs and to "evaluate alternate methods to improve access to Justice by the poorest segment of Venezuelan society" and, in fact, it included an exposition on "an alternative way to resolve disputes" in one of the judges' workshops. The theme, however, seems to have a much relegated place in the program's and its schedule's set. It is thus possible that the opportunity could be let go to integrate the ADRPs to this program's diverse components. In the legislative area, I do not know if the subcommittee reviewing the judiciary's constitutional amendment is considering the ADRPs, but they were apparently set aside by the Legislative Commission in the Code of Criminal Procedures draft amendment. In view of the opposition raised by justice of the peace inside and outside Congress, one may anticipate a lot of resistance to the proposals incorporating alternative means in any amendment to the judiciary's legislative frame. At the same time, the fact that there is justice of the peace leads to think that resistance may be overcome. The promoters of the judiciary emergency bill, who believe the opposite, include among their objectives "the widening of alternative justice in order that there will be ever more arbitration, justice of the peace, and measures substituting deprivation of freedom." Aside from this initiative's validity, opportunity or feasibility, one should note that, apparently, it assigns more importance to the ADRPs than other reform projects do. Currently, accordingly, signs begin to appear of some interest for alternative procedures in Venezuela. They are just slight signs within the set of proposals to face the judiciary's crisis. Let us hope that the recognition of the ADRPs is not postponed until it is too late -until we realize, deceived by another unfulfilled promise, that it is not enough to have a modern infrastructure, nor even honest judges if we still must search for new solutions. |
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