Courts, human rights and tranitional justice : lessons from Chile.

Sugarman, David (2009) Courts, human rights and tranitional justice : lessons from Chile. Journal of Law and Society, 36 (2). pp. 272-281. ISSN 1467-6478

Abstract

This paper reviews Lisa Hilbink’s, Judges Beyond Politics in Democracy and Dictatorship (2007). It argues that Hilbink’s well-written and impressively researched book provides the best available book on why Chile’s judges have hitherto tended to facilitate and condone illiberal and antidemocratic policies, and why these tendencies persist with respect to civil rights in general, beyond the Pinochet-era human rights cases. It stresses that Hilbink not only deepens our understanding of Chilean judges, but also highlights the relevance of the Chilean experience to current debates about judicial behaviour, the role of a judiciary in building and sustaining a meaningful democracy, and the potential and limits of institutional reform to the judiciary in Latin America and elsewhere. It is also argued that Hilbink’s book has some limitations: namely, the narrowly framed and deterministic character of its institutional analysis; the lack of attention given to informal institutions, relationships and understandings and their impact on judicial behaviour and outcomes, and to the fact that the old inquisitorial system of criminal procedure that applies to the Pinochet-era cases gives enormous discretion to the judges and is important for understanding the legal lottery experienced by victims and defendants alike. Specifically, and drawing upon the author’s own and other recent research on Chile, this paper argues that Chile’s judiciary are more heterodox, pragmatic and politicised than Hilbink implies. This paper presents findings that with respect to the human rights trials in Chile since 1998, Chile’s courts have been more successful in investigating and prosecuting the state crimes committed under the dictatorship than any other comparable country that has experienced the aftermath of authoritarianism and mass atrocity, and that this represents a new, distinct phase in Chile’s struggle to secure truth and justice. Nonetheless, it remains to be seen whether the judges of Chile will pull back from involvement in and support of the Pinochet-era human rights cases if a right-wing Chilean head of state is elected in the up-coming presidential elections, as much of what has been achieved on the human rights front is reversible.