33006 No. 21 / February 2005 Guatemala: The Role of Judicial Modernization in Post Conflict Reconstruction and Social Reconciliation The Peace Accords of 1996 brought an end to 36 years of armed conflict in Guatemala and signaled the beginning of a complex and challenging process of reconstruction and social reconciliation. A central plank of the consensus expressed in the Peace Accords was the overhauling of Guatemala's public institutions, which were seen to exacerbate the social and economic injustices that had contributed to the conflict. The Judicial Branch was identified as one of the key state institutions in a position to create the necessary conditions to help a divided and diverse population emerge from decades of conflict, social and economic exclusion, and mistrust in public governance. A World Bank-supported Judicial Modernization Project is in its third year of implementation and helping in this process along with other donors (UNDP, Sweden, Finland, IDB, Soros Foundation and others). The fundamental principles underlying the Peace violations and other crimes, the lack of institutional Accords were directed at creating sustainable presence throughout the country and very limited economic and social conditions for lasting social access to justice services, particularly for the peace and justice. A priority of the Peace Accords indigenous population, women, children and therefore was the recognition of the identity and the adolescents.2 rights of the indigenous peoples of Guatemala, to create a fully "pluricultural, multiethnic and Box 1. A Mandate for Change: plurilingual" nation. The Peace Accords identified Peace Accord for strengthening the an array of challenges, outlined a road map for legal administration of justice. and institutional reform, and provided a clear "The justice administration system, and within it, the mandate for social and political change. Under the functioning of judicial processes, suffer from Peace Accords, a Commission for Strengthening the weaknesses and deficiencies. Obsolete legal Civilian State was created with the task of procedures, delays, the lack of modern systems for the overhauling the justice system to achieve, among administration of judicial offices, and the lack of oversight of judicial operators and personnel, promote other things, the modernization of judicial corruption and inefficiency. The reform of the justice processes, equitable access to justice, professional system is a priority, to remedy its inefficiency, excellence and integrity, and civil society eradicate corruption, guarantee free access to justice, participation (see Box 1). impartiality in its application, judicial independence, the rule of ethics, the probity of the system as a whole, The Legacy of Conflict. The injustices of decades and its modernization," of conflict in Guatemala did not come to an end Peace Accord, Sept. 19, 1996 for the Strengthening of with the signing of the Peace Accords. Absent the the Civilian State and the Functions of the Military in a rule of law, the period of transition to democratic Democratic Society. government was made all the more challenging by the scant coverage and severe dysfunctionalities of Bridging Capability and Credibility Gaps. The the justice system. These conditions compounded Judiciary's challenge in contributing to Guatemala's the almost total lack of public confidence in the reconstruction and reconciliation was therefore justice system and contributed to an additional twofold: building institutional capabilities and deterioration in public safety, characterized by a generating credibility and public confidence in the spate of vigilante violence in the form of public Judiciary and its reform program. The institutional lynchings (extrajudicial killings)1. Low public challenges facing the Judiciary may be appreciated confidence in the justice system derived from by noting a few of the diagnostic findings prior to perceptions of corruption, impunity for human rights the implementation of the Bank-supported Judicial Modernization Project.3 In terms of coverage, all the civil, family and labor courts at the time were opinions about the goals set out in the Peace concentrated in Guatemala City, leaving 22 cities Accords. without such services; 80 percent of criminal court judges had no adequate space for holding hearings; The Modernization Plan for the Judicial Branch and about 30 percent of the country had no judicial emerged as a product of these consultations and branch presence (i.e., a courthouse or justice of the participatory assessment, with the global objectives peace); the rudimentary administrative functions of improving the efficacy, credibility and that were in place were also entirely concentrated in accessibility of judicial services, by strengthening Guatemala City; there was no planning function; the and decentralizing judicial institutions, eliminating exact number of judicial personnel was unknown; corruption, broadening and diversifying dispute duties and functions of personnel overlapped or left resolution mechanisms, and improving gaps, and all administrative and human resource communications and civil society participation. A functions (e.g., budgeting and statistics) were done social communications unit was created to respond manually. to the Judiciary's need for effective social outreach, legal education and access to information. Given these conditions, Guatemala's justice system did not have the capability to provide such basic The Nuts and Bolts of Modernization: judicial guarantees as equality under the law, Reengineering and Right-Sizing. `Right-sizing' effective dispute resolution, or access to services for the Judiciary required matching resources and the vast majority of the population. Moreover, the services to the needs of the population. ethnic and linguistic diversity of Guatemala's Strengthening the institutional capacity of the indigenous population (almost 50 percent of a total Judicial Branch meant creating the necessary of approximately 12 million) had historically been conditions for maximal efficiency in procedures and marginalized by a justice system that was administrative services by overhauling the structure incongruous with the social norms and cultural and procedures of the Judiciary. The strategic values that governed indigenous society. objectives achieved under the Project include: Reconciliation and equitable justice therefore would · The creation of departments and the training of require not only the legal recognition of indigenous personnel to perform four critical tasks: planning, rights and identities, but also a comprehensive human resources, administrative services, and approach to provide services attuned to the values financial management. Reorganizing the workflow and languages of half of Guatemala's population. of the courts has involved introducing economies of Planning for Consensus. Experiences in post- scale and streamlined procedures, and introducing conflict countries indicate that the success of public technologies for the creation, automation and sector reform programs depends as much on the management of court records and documentation. quality of diagnostic assessments and the adequacy These changes were instituted through the of reform plans, as on public awareness, stakeholder implementation of a new Organizational and participation, and public support. Decades of Management Model at the central and regional violence and growing accusations in the media of levels. Some of the gains achieved are the endemic corruption in the courts had almost totally rationalization of administrative and jurisdictional eroded public confidence in the Judiciary. services, including the creation of common Guatemala's Judiciary needed therefore to generate administrative support services for the jurisdictional a broad consensus for its reform goals and function, a reduction in bureaucracy, the strategies, and introduce mechanisms for keeping optimization of resource usage and the creation of the public informed about progress. A participatory coordination mechanisms for improved planning approach to project preparation was adopted and the and communications. judicial modernization program was launched · The ongoing decentralization of judicial and through stakeholder consultations with judges, other administrative functions at the regional level administrative personnel of the Judiciary, legal has successfully been piloted in the Huehuetenango professionals, government agencies, NGOs and civil area, which was strategically targeted as having society organizations, including indigenous and borne some of the worst of the conflict (while work gender advocacy groups, the media, business in Quetzaltenango, and Escuintla areas is in associations and chambers of commerce. These progress). consultations were supplemented with surveys of public perceptions of the justice system, including · The Judicial Branch set a target of equipping every municipality with a Justice of the Peace court, 2 and every Departmental capital with criminal, civil, Investing in Human Capital. Confidence in the family, and labor courts. Since 1997 there has been Judiciary depends in large measure on its a 54 percent increase in coverage toward achieving institutional autonomy and the independence of its that goal. officers. Among the key determinants of judicial Community Outreach. Civil society education independence are the professional conditions under campaigns spearheaded by the Modernization Unit which judges function. This includes the and the Supreme Court have made progress toward mechanisms for appointing judges, their building a new public image of the Judiciary, while professional stability, training, incentives, and raising awareness about dispute resolution services. disciplinary oversight. The absence of any The high incidence of community violence in the standardized judicial career norms or procedures form of lynchings was perceived as a critical was identified as a serious weakness in both the priority in this regard. The Supreme Court, with the independence and quality of the judicial function. A assistance of the World Bank and other entities, Judicial Career Law and a Code of Ethics were such as MINUGUA (UN Mission in Guatemala), introduced to regulate the hiring and promotion of undertook a community-based program to provide judges and to institute standardized evaluation and legal education and social outreach in communities. oversight procedures. A transparent, competitive, This project included more than 600 workshops merit-based process of recruiting judges was also which reached nearly 40,000 community leaders and instituted, and new a Disciplinary Board now citizens. Basing the approach on community investigates and sanctions ethical breaches.5 The dialogue and legal education about rights and development of the judicial career was also judicial mechanisms for dispute resolution, the goal instrumental to enhancing the quality of judicial was to reverse and eliminate the worrying trend of personnel. Comprehensive judicial training curricula vigilantism.4 were developed and entry-level and continuous training programs are now provided for judges and Educational campaigns in schools were also administrative personnel. The Judicial Training identified as a potentially fruitful approach toward School was set up and now provides standardized achieving the sustainability of social reconciliation and effective training nationally. As part of project by educating the younger generation in dispute implementation, seminars and workshops were resolution mechanisms and the social role of the conducted nationally to facilitate change Judiciary. One such initiative, carried out nationally management and the development of a culture of in association with the Ministry of Education, is the service orientation in the Judiciary. program "A Day with the Justice System" aimed at students of State elementary schools. The program Innovation and Diversification for Access to consists of a series of encounters between students Justice: Mobile Courts and Mediation Centers. and judges locally, including visits to the district The need to introduce alternative dispute resolution courts, culminating in a visit to the Plenary Chamber (ADR) mechanisms was recognized in the Peace of the Supreme Court for students selected as Accords as a direct corollary to improving the representatives of their District. At the request of timeliness, and broadening the accessibility of secondary schools, a further education program was dispute resolution services. The Judicial Branch developed, called "Judge for a Day". This program created a dedicated unit for the promotion, enables students to accompany local Justices of the evaluation and coordination of ADR mechanisms. Peace through their daily activities, learning about Under the auspices of the Supreme Court and the dispute resolution at the community level. Modernization Unit, a comprehensive program was Mediation was also introduced to the students, to undertaken to introduce these services, and to promote a culture of dialogue and conciliation integrate them within communities and within the within the school environment. And, a training ambit of the formal judicial system. Mediation as an program for secondary school social studies teachers alternative to costly and lengthy court proceedings is accompanied the introduction of a new curriculum the mainstay of this approach. 24 mediation centers entitled "Basic Guide to the Criminal Justice have so far been created nationally--a number of System." In 2002, 1,549 educators in 21 which are attached to new integrated judicial Departments (provinces) participated in 16 training centers--employing bilingual mediators in Spanish workshops, which impacted an estimated 150,000 and local Mayan languages. Between 2002 and students. 2004, 14,992 mediation cases were handled, of which 6,146 were resolved by means of mutual agreement between the parties. The majority of 3 cases handled relate to land and property disputes, References: child maintenance, domestic violence, contract Malik, W. and C. Larios Ochaita (eds.) 2002. "Furthering Judicial enforcements and wages, and minor criminal Education: Proceedings of the Conference of Judicial Schools in offences. Latin America." Technical Paper No. 528: The World Bank. To support the full access of indigenous Programa de Modernización del Sistema de Justicia and The World Bank. 1997. Reporte de Resultados Generales de un Estudio de communities to the justice system, 49 community Opinión Pública sobre la Administración de Justicia en led workshops were carried out in 36 rural Guatemala. municipalities (as part of the Development World Bank. 2004. Preparación de Insumos para la Evaluación del Marketplace 2000 Award) to promote awareness of Proyecto BIRF 4401-GU. Reforma Judicial de Guatemala. the role of newly created justice of the peace courts, Wanis-St. John, A. 2004. "A Culture of Justice: Towards a New and to educate judicial operators in the customs and Judiciary in Guatemala." Report presented at the World Bank values of indigenous communities (1,875 Global Learning Process for Scaling Up Poverty Reduction and Conference in Shanghai, May 23-25. community leaders and 500 judicial operators participated in these workshops). Basic guides to 1 legal procedures and laws have been published in Summary justice in the form of lynchings emerged as a direct vestige of the armed conflict, and as a by-product of the absence of Mayan languages, and radio broadcasts inform local formal judicial channels. In the consultations during project populations about the role and availability of dispute preparation, 52 percent of indigenous communities reported resolution services through both formal and ADR knowledge of lynching incidents and 76 percent expressed the mechanisms. A further innovative approach has opinion that the majority of Guatemalans approved of lynching as a form of summary justice. 69 percent of the non-indigenous been the creation of two pilot mobile courts, which population expressed the same opinion. are now operational in the Departments of 2Reporte de Resultados Generales de un Estudio de Opinión Pública Guatemala and Quetzaltenango. These provide free sobre la Administración de Justicia en Guatemala. Programa de Modernización del Sistema de Justicia and The World Bank. 1997 mediation and conciliation services. (Between May 3Diagnostic Study of the Guatemalan Judiciary. Organismo Judicial 2003 and March 2004, the mobile courts attended to and the World Bank. 1997. 4 1,564 users, of which 63 percent were women). The Although the phenomenon has not been eliminated, the number of respondents nationally who expressed approval of lynching as a form use of mobile courts, mediation centers and of summary justice had dropped by August 2003, to 38 percent. indigenous languages reflect the project's reliance Informe Final de un Estudio Cuántitativo de Opinión Pública, 2003. 5 on innovation to overcome the significant obstacles A total of 2,778 complaints were filed against judges between August 2000 and 2004, resulting in 633 disciplinary proceedings, to modernization that existed, including public leading to 109 suspensions and 17 dismissals. A total of 3,307 mistrust, scarce resources, geographical isolation, complaints were filed against administrative personnel between 2000 multiple languages and ethnicities. and 2003, resulting in 657 suspensions and 148 dismissals. 6Doing Business in 2005: Removing Obstacles to Growth. A co- The project was designed to reap immediate, publication of the World Bank, the IFC , and Oxford University Press. There is need to speed-up the improvements to commercial medium and long-term benefits. Poverty reduction is court decision enforcement mechanisms and expand knowledge expected to be one of the long-term benefits of this sharing and information dissemination to NGOs, and business users project in conjunction with other milestones on the overall reform process. achieved by Guatemala. Since the inception of _______________________________________________________ Guatemala's judicial reform and modernization This note was prepared by Waleed Haider Malik, Lead Public Sector program, remarkable progress has been achieved in Management Specialist in the Latin America and the Caribbean improving and broadening access to dispute Region of the World Bank in collaboration with Alexandra Habershon, Roberto Panzardi, Lisa Bhansali, Maria Novoa, and Nina resolution services, strengthening the rule of law, Ohman of LCSPS. We would like to thank Justice Ruben Eliu promoting transparency in the administration of Higueros Giron of the Guatemala Supreme Court, and Maria del justice, and recognizing and protecting the rights of Carmen Ortiz of the Guatemala Judicial Branch Modernization Unit indigenous peoples.6 for valuable insights, data and collaboration. We would also like to Although economic and thank Jane Armitage, Ernesto May, Ronald Myers, Felipe Jaramillo, political hurdles have hampered progress toward the Ian Bannon, Richard Messick, Neeta Sirur, Sandy Davis, Stig full realization of the Peace Accords' goals, it is Trommer and many others for valuable guidance and comments. hoped that the Guatemalan Judiciary's experience This Note was also published as Social Development Note No. 99 can provide useful insights into the role of judicial and is part of a series intending to disseminate good practice and key modernization in supporting social reconciliation findings on conflict prevention and reconstruction. This series is edited by the CPR Unit in the Social Development Department of the and equitable social and economic development for Environmentally and Socially Sustainable Development Network of countries emerging from conflict. the World Bank. CPR Dissemination Notes are distributed widely to Bank staff and are available on the CPR website http://www.worldbank.org/conflict and can also be requested via e- mail at cpr@worldbank.org. 4