The Relevance of Criminal Courts in the Global South

Abstract

The literature on comparative law has a long and robust tradition, but studies comparing courts and judicial systems are scarce. Comparative studies in the Global South, following Shapiro’s institutional approach, have aimed to measure the involvement of courts in politics by assessing the power of the judiciary in society, the level of judicial independence, and their role in the context of the judicialization of politics. The focus was on the high courts, including either Constitutional or Supreme Courts. Criminal courts have not received similar attention despite the influence of their everyday decisions on people’s lives and their perception of the judicial system. This article argues that developing a comparative approach for criminal courts in the Global South is needed to help understand the role they play in the development of the rule of law and democratic life. This comparative study helps understand the impact of judicial reform programmes in the Global South. These reforms, inspired by a neoliberal paradigm, have focused on improving the efficiency of the courts. The reforms have promoted managerial techniques detrimental to the standards of due process. Any assessment of the impact of the reforms on the courts in the Global South should start by recognising the widely differing settings under which they operate. This context is characterised by serious economic constraints, such as a lack of material and human resources, and a democratic deficit legacy from the past authoritarian regimes, including widespread police abuse and corruption. Given this context, the role of the courts in ensuring due process and the legality of police procedures is crucial. The impact of the judicial reforms promoting managerial rationality in recent decades must be analysed. To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines.