Judicial independence is when the judges, who decide cases in courts, perform their duties without favor and fear (Pérez-Liñán, A., & Castagnola, A., 2016). The perception of this independence gives the members of the public the confidence to present their claims to such courts with the hope they will be ruled justly without favoritism to anyone, not even the government (Malina, E., 2016). The government of a country may interfere with the judicial independence through lack of guaranteed tenure to the judicial officials and lack of permanent appointments to them. Judicial independence is closely related to the level democracy, hence making some nations in the world have strong and independent judicial systems while others lack it (Pérez-Liñán, A., & Castagnola, A., 2016). International relations is important as the lack of judicial independence can lead to developed countries, to sanction trade or deny foreign aid to the developing nations.
Research in judicial independence in Latin America is as old as the legal system itself (Garcia-Bolivar, O. E., 2012). Researchers have attempted to explain the impact of the lack of judicial independence in Latin American countries, but they have been unable to address it exhaustively. There is a disagreement over the issue among the researchers due to the lack of a precise definition of judicial independence (Pérez-Liñán, A., & Castagnola, A., 2016). Research done by Drew A. Linzer, from Emory University points slow economic growth as the main impact of lack of judicial independence in Latin American countries, which might be the creation of another problem like corruption (Arnold, B., 2015). My approach calls for a combination of the indicators of lack of judicial independence in the Latin Americans countries and to compare them with nations in the Caribbean because they are assumed to be at the same level economically, which will ensure accuracy in the results.
Garcia-Bolivar has examined the judicial independence in Bolivia and the impact it has had on its citizens by using questionnaires that were administered to citizens in several provinces in Latin American countries through sampling techniques. The outcome of their research points out that verdicts made by judicial systems in Bolivia are frequently revisited and analyzed by superpowers which lead to enforcement of foreign judgment where the respondents feel that justice has not taken its route (Garcia-Bolivar, O. E., 2012). Garcia-Bolivar explained that, the doctrine of Forum Non Conveniens, whereby courts that are independent in Latin America have declined to listen to cases because they think that they are not in a position to handle them due (Garcia-Bolivar, O. E., 2012). Under this situation, the defendant may propose another country that can handle a particular case better than the judicial system of the mother country.
The work of Garcia-Bolivar has characterized citizens and foreign investors in Latin American countries with possession of an insurance policy claim as a remedy to a verdict that may lead to loss of property (Garcia-Bolivar, O. E., 2012). The suspicion among the investors was created by the possibility of an entirely different outcome of a case in judicial courts (DeShazo, P., & Vargas, J. E., 2006). The verdict of a judicial system that is not independent is likely to be swayed by influential figures in the government. Loss of property creates fear among citizens which leads them to seek refuge from insurance companies to protect their assets in case this happens (Garcia-Bolivar, O. E., 2012). Countries in Latin America are characterized by the violation of human rights and violence from the leaders to acquire power forcefully. This results from failure to uphold the rule of law which clearly defines the number of terms a President should lead.
Emily Malina conducted two studies in Bolivia to ascertain how President Evo Morales, the incumbent President treats the military. Additionally, their study administered a questionnaire to citizens in some parts in Bolivia. The questionnaire content targeted how military leaders had been mistreated and intimidated to prevent them from going against the President. The results of the analysis showed the existence of military injustice in the country and especially the ones that have tried to go against the President who is aimed to maintain the popularity of the incumbent President since 2005.
DeShazo and Vargas credit economic drag to the lack of judicial independence in Bolivia. Stability in any named country is acquired in a situation where the citizens have trust in the legal system and hence are unlikely to rise against a government in power (P. DeShazo, J. E. Vargas, 2016). The politician (President Evo Morales) in this country has deliberately underfunded the court system to ensure that they lack the potential to attend to political cases effectively (DeShazo, P., & Vargas, J. E., 2006). Although Chile is in the region, it has made significant steps in upholding democracy and in protecting the judicial independence. In countries like Argentina, the model of federal and state court is a replica of the American one, but the country still experiences challenges. The country is characterized by the presence of terrorists, which was especially evident during the dictatorial regime. According to DeShazo and Vargas, they note that the independence of the system in Argentina has partially been attained.
Arnold has labeled these countries like the one that vests most of their powers in the judiciary arm of the government. In his work, he argues that most of the countries in Latin America have tested increasing executive power more than arms of the government evident in Venezuela and Bolivia (Garcia-Bolivar, O. E., 2012). Arnold noticed a constant constitutional change which the results are inclined towards increasing the powers of the executive and weakening other arms of the government. In his study, he raised concerns about the additional constitutional amendments without considering how it might impact the stability of the country. The matter of judicial independence and lack wrangles in any named countries are inseparable. In countries that lack an efficient judicial system, the citizens are likely to take law on their hand which leads to a state of anarchy (Wiarda, H. J., & Kline, H. F., 2014). This has been seen in Bolivia when President Morales scrapped the constitution to allow him to vie for the fourth term in 2019 general election.
Despite the existence of vast amounts of literature concerning the lack of judicial independence, scholars have not yet agreed on the issue. No researcher has come up with a comprehensive theory that explains the impact of the lack of judicial independence in Latin American countries (Arnold, B., 2015). The models employed by DeShazo and Vargas in their studies to conclude that economic laxity in Latin American countries does not fully exhaust the other potential causes of monetary laxity (Pérez-Liñán, A., & Castagnola, A., 2016). Economic development has other factors that can affect it and especially the innovations which may accelerate growth. There are other factors such as economic factors, which may also lead to violence in such states, which makes their results not to adequate to address the problem.
This research will be critical in adding a body of literature to the state of the judicial systems in Latin America, which can be an essential tool for use by international communities and non-governmental organizations to realize how severely the lack of judicial independence has affected the nations. This is an important step to fight the menace and to ensure the rule of law prevails to enhance economic development.
Countries in Latin America have lagged in embracing democracy and accepting the rule of law in its politics. The leaders of the region have used the excess executive power to further their political interest. The judicial systems in the countries have been snatched power from the judiciary through faulty appointments that are politically affiliated and lack of defined tenure in office of such judicial officers. A body of literature exists on the impact of the lack of an independent judicial system in the region. Most of the Latin American countries have adopted the US Constitution which is a state known for its support for democracy, but still, the problem persists. My research goal is to determine the impact of lack independent judicial system across the countries in Latin America and understand the share of power between the executive and the judiciary in thin Latin American countries.