A country must have a properly
operating judicial system in order for its rule of law to function and
its economy to develop. Within the framework of neo-institutional
economic theory, the judicial system is a fundamental mechanism for
guaranteeing compliance with the rules required to facilitate the
activities and transactions of economic agents.
A nation's legislation cannot
stand on its own, no matter how good it is. For the laws to be
effective, they must be upheld by a system of conflict resolution that
functions properly. The Judiciary is vitally important in this sphere,
because all other mechanisms for conflict resolution can, in one way or
another, end up in the Judiciary if one of the parties so
decides.
The Judiciary has two general
functions. It must interpret and apply the rules of play set up through
the body of laws, according to established procedures. It must identify
inconsistencies between specific rules and the Constitution. In this
sense, an efficient and impartial judicial system is important to a
nation's economic and social life, because it must ensure the
effectiveness of the rules of play that allow agents to work within an
environment of certainty, with guarantees of their rights.
In Peru, the judicial system does
not function properly; court cases are inefficiently processed (they are
costly and slow), there is political influence, judicial decisions are
uncertain, there is corruption, and access to justice is unequal. As a
result, the judicial system fosters legal insecurity.
Few studies have been done with
systematized, empirical evidence offering an assessment of the
Judiciary's performance and almost no studies have aimed at evaluating
the Judiciary's impact on business economics and on the national
economy.
The poor functioning of Peru's
judicial system is not a new problem. Throughout the nation's history
there have been many attempts at reform, with varied objectives and
strategies, that sought, unsuccessfully, to resolve the deficiencies in
the system's performance. Throughout these attempts, civil society has
demonstrated very little interest in the subject. Usually, only a few
magistrates, attorneys and politicians have taken part in the reforms.
It may be that a good system of administration of justice can only be
achieved when this tendency is reversed and many agents of civil society
become more involved in identifying the problems and overseeing the
attempts at reform.
As a starting point for the
discussion, the Task Force decided to limit its scope to the Judiciary,
excluding other institutions that are part of the wider system of
administration of justice. It then proposed what it thought the
objectives of the judicial reform should be.
The Task Force believes that the
goal is not only to make procedures quicker, but also to establish an
adequate resolution of conflicts. This should be understood as providing
satisfaction to litigants and other users of the Judiciary, and,
ultimately, as receiving favorable public opinion. The Task Force also
stressed the importance of the Judiciary's being independent. It is not
enough to make progress in reforming procedures and infrastructure; the
country must have a Judiciary that acts as a counterweight to the other
branches of government and is not swayed by groups with economic or
social power.
Throughout its meetings, the Task
Force discussed the factors responsible for the Judiciary's poor
performance in resolving conflicts promptly, properly and independently.
It also debated ideas and proposals for solution. The Task Force
organized the topics it discussed -considered to be crucial points of
the debate- around the factors it believes have made the Judiciary
function inadequately. In the opinion of the Task Force, these are a
lack of independence, corruption and the deficient qualifications of a
large percentage of the magistrates. When the Task Force discussed this
last point, it dealt with the systems for selecting and appointing
magistrates, the judicial career and legal education in Peru. It also
established four issues that are important in developing the judicial
system: the role of Peru's bar associations, alternatives for conflict
resolution, justices of the peace and the special jurisdiction of
farming and native communities.
