Headlines, Human Rights, Latin America & the Caribbean

LATIN AMERICA: Secrecy of Justice System Hurts Democracy

Daniela Estrada

SANTIAGO, Dec 9 2004 (IPS) - In order to eliminate the culture of secrecy in Latin America’s judicial systems, which threatens democracy, comprehensive policies are needed to facilitate access to public information, according to a recent study by an OAS institution and an autonomous intergovernmental body.

The report, which carries out an in-depth study of the situation in Argentina, Peru and Chile, recommends continued reforms of the justice system, passage of laws on access to public information, specific training for judicial system employees and officials, and measures to make judicial language more accessible to the public.

“The culture of secrecy in our societies is bad for democracy,” said Eduardo Bertoni, the Inter-American Commission on Human Rights special rapporteur on freedom of expression.

The study, presented Nov. 30 at a seminar in Santiago, forms part of a project by Bertoni’s office and the Justice Studies Centre of the Americas (JSCA), an autonomous intergovernmental organisation. It was financed by the Human Rights and Citizenship programme of the Ford Foundation’s office for the Andean Region and the Southern Cone.

The situation in Argentina, Peru and Chile is similar to that of most of the Latin American member countries of the Organisation of American States (OAS), despite the fact that significant changes have been seen in the past few years, said Bertoni.

A number of countries have begun to reform their justice systems, particularly with regard to criminal proceedings, and have passed and implemented laws on access to public information, as in the case of Mexico, Panama, Ecuador and the Dominican Republic.

Likewise, the American Convention on Human Rights, which is legally binding for the countries that have ratified it, provides various safeguards linking due process with access to information.

The JSCA and the special rapporteur underline that judicial proceedings affect citizens’ rights and that guaranteeing access to information will improve quality of life and protect the common good.

The study separately analysed the administrative and legal functions of the judicial branch and concluded that in the region, a greater openness has been seen with respect to legal questions, due to the reforms that have been carried out, including the adoption, in countries like Argentina and Chile, of public oral trials.

In Argentina, Peru and Chile, the most sensitive topics involve administrative issues, such as the handling of budgetary resources and transparency regarding the curriculums and professional performance of judicial system employees, especially judges.

The direct users of judicial information – lawyers, defendants, victims and witnesses – as well as the media, local non-governmental organisations and researchers, are entitled to request access to public information, says the report.

Of the three countries studied, Argentina was the first to reform its legal system, in 1992. Nevertheless, according to the report, the use of oral trials is still in its infancy, and has run into complications.

According to the author of the section on Argentina, Milena Ricci, among the pending tasks is “the passage of a law on access to public information in the three branches of the state, which is currently making its way through Congress”.

She also recommended better training for judicial system employees and improvements in offices that serve the public, which have serious problems with signposting, that lead to confusion and frustration.

“The Argentine courts are undergoing renovation and have taken a proactive role in the reforms. Therefore, independently of whether or not a law is passed – which would, however, be useful in terms of demanding changes – the judicial branch itself can implement mechanisms to promote access to information,” Ricci told IPS.

A reform of the penal system was also approved this year in Peru, but has not yet been put into practice. In addition, Peru has a sunshine law, which went into force on Jan. 1, 2003, although it has had little effect up to now.

“In Peru, we do not have a policy of enforcing this law. There is no public body that would have the capacity and the mandate to do so. Today the public institutions do what they believe is necessary in accordance with their own interpretation of the law,” Javier Casas, the author of the section of the report on Peru, told IPS.

The Peruvian lawyer and journalist highlighted the case of Mexico, which created a Federal Institute of Access to Information “exclusively dedicated to providing guidelines for and interpreting the federal government’s policy concerning transparency”.

Casas said the situation in Peru is heavily influenced by the high levels of corruption in the country. “At the moment, the question of promoting access to public information is not on the national agenda,” he added.

Only regional governments have undertaken a few interesting initiatives, and “if these take hold, they may become good examples for similar institutions” at the national level, he remarked.

Chile passed a new penal procedures code in 2000, introducing oral, public trials as a central feature of the reforms, which will go into effect throughout the country as of June 2005, when they are introduced in the Santiago metropolitan region, where 60 percent of judicial cases are tried.

The head of programmes at the JSCA, Mildred Hartmann, explained to IPS that the reform of criminal procedures in Chile has succeeded in putting public trials into place, and in “demonstrating that this is not only possible, but beneficial.”

The remaining branches of the justice system (civil and labour law) should join in the effort and put into action similar or comparable strategies, said Hartmann.

“Nevertheless, there is still the question of administrative information, i.e. statistics, budgets, etc., where there is still a great deal of work to do in order to increase the availability and quality of the information,” she added.

As in Argentina, in Chile there are no rules on access to public information. “It is possible that a law specifically identifying some gaps would help, but only if it forms part of a more global strategy, which would include training for public employees on the question of access to public information,” she commented.

“According to the information that we have found, which is not a great deal actually, all efforts to resolve the problem of access to judicial information with a specific law or strategy have come to naught,” she added.

In this scenario, the media should play a fundamental role, but in all the countries studied, journalists say they have no choice but to use unofficial or off-the-record sources for obtaining information on trials and judges. They also complain about the dense legal jargon.

The judicial system in Chile tends to act with suspicion towards anyone who requests information, said Macarena Puigrredón, a Chilean TV news anchor.

Journalist and lawyer Miguel González, head of communications for the Chilean Supreme Court, responded that the judiciary has begun to open up, and now provides information over the Internet, with a web site that receives around 100,000 questions a day about court decisions.