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Noriega Encourages Continued Legal Reform in Latin America

U.S. official says much has been done, but much more work remains

Posted: April 15, 2005

Latin American leaders are undertaking legal reforms to make democracy and market economies work better and, although progress has been made, much more work remains, according to Assistant Secretary of State for Western Hemisphere Affairs Roger Noriega.

In April 13 remarks before the American Bar Association's Latin America and Caribbean Law Initiative Council, Noriega pointed out that many individuals in the hemisphere are frustrated by the perceived inability of democracies to deliver benefits equitably to all citizens.

The State Department official noted that polls reflect a lack of trust in regional governments and institutions that are too often politicized, centralized and bureaucratized. He said that hemispheric legal systems too often reinforce the status quo and that the great majority of populations lack access to the legal process.

Noriega said that opportunities, property and power are distributed unevenly and that in some countries there is no single legal body that can be relied upon to make impartial, apolitical decisions. Other flaws he outlined included the legal immunity granted to legislators and the absence of legal reforms to accompany macro-economic reforms so that all can share the benefits of globalization.

Given these myriad problems, the State Department official said, the task before Latin American governments is to make the law relevant to how most people in the region live and work.

"The law has to change from being a means to protect and preserve an antiquated order to being a powerful tool for creating a new one," he said.

The U.S. official said that regional leaders are pushing legal or constitutional reforms to foster impartial, professional and apolitical judiciaries and to better link elected officials to their constituents.

Noriega pointed out that the United States is supporting the region's legal reforms by funding and managing projects to strengthen the rule of law.

U.S. assistance, Noriega said, has resulted in advances including reforms toward oral and adversarial court systems with better case-tracking and more efficient, fair and transparent court procedures.

Noriega said that the United States is committed to the continuing process of legal reform in the Americas, and he added that these efforts will be reinforced by the Bush administration's Millennium Challenge Account (MCA) initiative. The MCA, he said, rewards governments that govern justly, uphold the rule of law and fight corruption.

Noriega concluded that despite recent progress in promoting legal reforms in the Americas, much work remains.

Following is the text of Noriega's remarks, as prepared for delivery:

(begin text)

Roger F. Noriega, Assistant Secretary of State for Western Hemisphere Affairs

Remarks Before the American Bar Association's Latin America & Caribbean Law Initiative Council

Washington, D.C.
April 13, 2005

Rule of Law in Latin America

Looking at Latin America today, it is, quite frankly, astonishing to consider how far the region has come in just two decades. The struggle for democracy that characterized the 1980s is thankfully now a mutual effort to deliver the benefits of freedom to every individual in every country.

The vast majority of Latin Americans and their Caribbean neighbors live under leaders of their own choosing. Free elections and peaceful transfers of power are the norm and former adversaries compete not on the battlefield, but in the democratic arena of electoral politics.

Political progress in the region has gone hand in hand with economic reform. Many of the old demons are gone: inflation is largely tamed; countries are increasingly open to foreign trade and investment; economic setbacks still occur, but no longer do they lead inevitably to crises affecting the entire hemisphere.

Still, while the region has come far, we all know the journey continues. That is to say, we continue to confront many challenges in the workings of democracy in the region.

There is little doubt that many individuals in the hemisphere are frustrated by the perceived inability of democracies to deliver benefits to all citizens in equal measure.

What the polls show is that Latin Americans by and large lack trust in their governments and their institutions. The survey numbers suggest that overwhelming majorities in virtually all countries of the region have "little" or "no" confidence in their executive, judiciary, legislature, political parties, armed forces or police.

It is not difficult to understand why.

These institutions too often are overly politicized, centralized, and bureaucratized which can be attributed to the fact that many Latin American societies are being hobbled by outdated legal systems that have failed to keep pace with the rapid changes of a 21st-century globalized world.

Rather than a means to facilitate people's needs and ambitions, the legal systems merely reinforce the status quo, resulting in widespread popular discouragement, uncertainty, corruption, and social unrest.

The great majority of populations lack access to the legal process; opportunities, property, and power are distributed unevenly; and obstructive bureaucracies force millions to live and work outside legal frameworks.

In some countries there is not one single body not a Supreme Court, not an Electoral Commission, not a Regulatory Board that can be relied upon to routinely make impartial, apolitical decisions in accordance with the law.

In other cases, the legal immunity granted legislators and the de facto impunity afforded many other governmental and political actors has opened up a chasm between them and the people they are supposed to represent and serve. At the same time, the oversight capabilities of legislatures or anti-corruption bodies are often undeveloped.

Unfortunately, the macro-economic reforms being undertaken in the region the opening up of once protected economies, the pursuit of free trade and private investment, and the stabilization of currencies have not been accompanied by the necessary legal reforms that would allow all to partake in globalization's benefits.

Without clear, impartial, predictable rules applied equally to all without the integration of all sectors of society into the legal system without giving the have-nots equal opportunity to compete with the haves then such macro-economic reforms are more likely to exacerbate societal tensions than eradicate them.

With globalization's information and communications revolution, the long-marginalized sectors of populations are better informed of what they do not have and are being denied. Anger and resentment are increasing. In some cases, that discontent is being exploited by political opportunists pursuing narrow agendas, creating dangerous and volatile situations.

No healthy society, government, or even entire state can long survive with a culture marked by such distrust, cynicism, and division.

In short, according to a study by the Center for Strategic and International Studies, a corrupt or inefficient justice sector can slow economic development, undermine the strength and credibility of democratic institutions, and erode the social capital necessary for development.

As all of you are well aware, effective legal institutions allow for vibrant civil societies, stable polities, and efficient economies. They provide the means for private individuals from all walks of life to join in political, economic, and social activity and compete on an equal footing. It allows them to decide how they want to live their lives and what opportunities they want to pursue. The rule of law enables people to fulfill their dreams and aspirations.

A modern market economy is absolutely dependent on such structures. A legal system that gives all citizens ready access to the law will lower the cost of producing and obtaining wealth; encourage people to innovate and specialize; and facilitate transactions between people enabling human and material resources to be used in the most efficient way.

Establishing the rule of law also helps to fight crime more effectively, and in the process improve security in those countries and throughout the region. Obviously, in the new environment of security concerns and the War on Terror, the stability of the hemisphere is a high priority for the United States.

The task before Latin American governments is thus to make the law relevant to how most people live and work. The law has to change from being a means to protect and preserve an antiquated order to being a powerful tool for creating a new one.

The good news is the hemisphere's most successful democratic leaders understand the need to make democracy and market economies work and are spearheading legal reform agendas.

They are pushing legal or constitutional reforms that foster impartial, professional, and apolitical judiciaries. Some countries in the region have enjoyed great success in judicial reform by streamlining civil code procedures; introducing computerized case tracking systems; staggering the appointment of Supreme Court justices; and naming judicial councils that oversee hiring, firing, and disciplining judicial employees.

They are promoting legal or constitutional reforms that better link elected officials to their constituents. Politicians will never behave if they cannot easily be held accountable by the voters from a defined district or are officially shielded from prosecution.

Some are closing the gap between politicians and voters by decentralizing political power and revenue collection granting municipal governments both real responsibility and revenue can tamp down corruption and give people a greater sense of direct participation in the political system.

And some are prosecuting corruption cases and institutionalizing procedures that promote public transparency including electronic procurement, freedom of information legislation, and the establishment of ombudsman offices to monitor allegations of corruption.

United States assistance programs are also lending a hand. We are funding and managing projects to strengthen the rule of law through partner organizations that are working for change in the region. By helping countries to establish just and effective legal systems, the United States is able to strengthen democracies in the region, increase their legitimacy in the eyes of citizens, and bolster support for their democratic institutions.

We are providing democracy building support in the hemisphere ranging from legal code reform and judicial training to law enforcement assistance to anti-corruption projects.

The latter is particularly important to U.S. policy because of corruption's pervasiveness and its corrosive effect on public confidence in democratic institutions. There is also perhaps no better indicator of the illegitimacy of the current legal order in Latin America.

Our assistance has resulted in many significant achievements, including:

-- Reforms toward oral and adversarial court systems with better case tracking and professional administrative procedures have made court procedures more efficient, fair, and transparent.

-- Today, judges and prosecutors demonstrate greater independence, and are more willing to challenge wrongdoing by the powerful.

-- It is less likely that the poor will have to languish in jail for years before a trial date or be sentenced prior to trial.

-- Disadvantaged groups have gained greater access to legal remedies and assistance.

-- There are more personnel working in justice systems, and more of them receive specialized training. Judges and staff are better qualified, and more are selected based on merit systems. In most countries, justice budgets are larger, productivity is higher, and backlogs are smaller.

-- Improvements in legal education and the use of merit selection systems for judges, prosecutors, and defenders, have resulted in long-lasting improvements of the justice sector.

Real achievements have also been made in the changing attitudes of the public in those countries. Corruption and impunity are no longer considered acceptable or inevitable by many citizens, and politicians and military officials can no longer be confident of being above the law.

Civil society has become more concerned and involved with justice reform, and collaborative efforts have developed across borders to formulate regional approaches to justice reform. Networks of national and regional civil society organizations are monitoring progress, informing the public, and engaging in ongoing policy dialogue.

Let me be clear: we are committed to this continuing process, and in many of the countries that have recently reformed their judicial systems, much work remains to equip and strengthen a new system through continued training and sharing of technical expertise.

Where governments are still resistant to judicial reform, we can continue to work through civil society actors to advocate for reform and increase public demand for equitable, efficient, and transparent justice systems.

These initiatives have been reinforced by President Bush's Millennium Challenge Account, his groundbreaking aid program that rewards sound policies and seeks to prevent crises. The MCC was funded by Congress at $1 billion for fiscal year 2004 and $1.5 billion for fiscal year 2005. The White House has requested $3 billion in funding for FY 2006, with an eventual goal of $5 billion annually.

To be eligible for this new money, nations must govern justly and honestly, uphold the rule of law, fight corruption, and invest in their people. And they must unleash the energy and creativity necessary for economic growth by opening up their markets, removing barriers to entrepreneurship, and reducing excessive bureaucracy and regulation.

Three countries from our own hemisphere were among the first 16 to be declared eligible for MCA assistance: Bolivia, Honduras, and Nicaragua. Two additional countries were recently selected as "MCA threshold countries" for FY05 Guyana and Paraguay. These countries could receive assistance aimed at helping them achieve full eligibility if they continue to demonstrate their commitment to the program's principles.

By placing a premium on good governance and effective social investment, the MCA approach should help countries attract investment, compete for trade opportunities, and maximize the benefits of economic assistance funds.

In short, much has been done, much is being done, but more must be done, if the fruits of the last 20 years of democratic, economic, and legal reforms are to be enjoyed by all citizens of the hemisphere. We are heartened by the facts that speaking about corruption in international fora is no longer taboo, and that people throughout the region are increasingly aware of, and impatient with, bearing the costs of corruption.

Ladies and gentlemen, the challenges to democracy in the region continue to be daunting but I am convinced they can be overcome by strong leadership, a willingness to make tough decisions, the forging of a national consensus, and the active implementation of a reform agenda of the kind we have been speaking about today.

The hemisphere's democratic agenda cannot be advanced solely by the poetry of verbal commitment to its principles; it must be advanced by the daily toil of governments.

Sustainable economic growth and political stability are only possible if governments establish the requisite legal institutions that consciously extend political power and economic opportunity to everyone, especially the poor. That is the cornerstone of a viable state.

The United States will continue to work with leaders from across the political spectrum in a respectful and mutually beneficial way to strengthen our democratic institutions, build stronger economies, and promote more equitable and just societies.

But let us recognize that no amount of external aid will substitute for governments making the tough decisions for themselves to open up their economies, to make their governments more effective and accountable, to make themselves more competitive in a global economy, and to extend the most basic services and opportunities equitably.

In short, their challenge today is to re-direct the popular energy squandered on resentment and destruction towards economic and social progress.

To their immense credit, most of the leaders of this region recognize these obligations and are working hard to fulfill them. And as they do so, they have found in the Bush administration a creative partner, reinforcing the forces of reform.

Thank you very much, and I look forward to answering any questions you may have.

(end text)

 

 

 

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