THE DEMOCRATIC ARBITER: THE ROLE OF THE JUDICIARY IN THE DEMOCRATIC CONSOLIDATION PROCESS IN NICARAGUA AND COSTA RICA By LEE D. WALKER A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2003 ACKNOWLEDGMENTS The completion of this work is the end of one journey and the beginning of another. In this sense it is a good place to pause and let some very important people know what they have meant to my intellectual and academic development. I am still far from being the scholar that I desire to be, but I have made it this far thanks to the support and encouragement of the Department of Political Science at the University of Florida. I express my sincere gratitude to my supervisory committee of Leslie Anderson, Terry McCoy, Philip Williams, Michael Martinez, Albert Matheny, and George Casella. First, Dr. Anderson has been a wonderful mentor and advisor. She guided me through my master’s degree in Latin American studies and has always been supportive and encouraging about the direction of my work. I am particularly grateful that she has instilled in me an appreciation of and a desire to use diverse methodological approaches to understand the questions of political science. Second, I thank Terry McCoy. He was my first advisor at the University of Florida, and I have relied on his wisdom my entire stay at the University. Next, I express my sincere gratitude to Philip Williams, for his help on the dissertation and for giving me the opportunity to work with him on my first collaborative writing project. Michael Martinez has been important to my academic development in several ways. He was graduate coordinator when I first entered the program; and he has always supported my academic development. He arranged for the department to assist my first visit to Inter-Consortium of Political and Social Research at the University of Michigan, and facilitated my receipt of the Clogg Fellowship. Additionally, discussions with Dr. Martinez prompted me to explore alternative ways to approach the major questions of the dissertation, which greatly improved the work. 11 Furthermore, I want to thank Dr Matheny and Dr. Casella for helping me to complete this project. Dr. Matheny provided valuable assistance through his experience and knowledge of the judiciary. I count myself fortunate to have had the opportunity to work with him. I am equally fortunate to have the opportunity to work with Dr. Casella. His expertise and encouragement has fortified my resolve in some of the methodological approaches I have taken in this dissertation. I would also like to thank Jeff Gill. His addition to the faculty had a profound impact on the direction of my dissertation and the makeup of my committee. Through Dr. Gill’s friendship with Dr. Casella, I was able to add Dr. Casella to my committee. I am very grateful for this addition. Moreover, Dr. Gill provided the opportunity for my second writing collaboration, and this collaboration provided an important contribution to this dissertation. I wish to thank the Tinker Foundation, which partly financed my masters research. This research was the foundation on which I built this dissertation. Further, I thank Dr. Larry Dodd and the Dauer Foundation for support to attend ICPSR. I also thank the Graduate School for the College of Liberal Arts and Science’s fellowship supporting the writing of this dissertation. Once again, I thank the entire Department of Political Science, faculty, staff (especially Debbie Whalen), and the graduate students, who provided a nurturing and stimulating environment in which to study politics. I also thank the Department of Political Science of the University of Kentucky (Lexington), whose members provided valuable assistance, advice, and encouragement during the writing of this dissertation. I am indebted to many individuals in Nicaragua and Costa Rica who graciously consented to be a part of my study. In particular, I thank Supreme Court Justices Josefma Ramos, Harlan Kent Henriquez, and Alba Luz Ramos in Nicaragua; and Rodrigo Castro, and Jose Arroyo in Costa Rica. Additionally, I thank District Court Judge Filberto Toruno for his continued support to my research in Nicaragua. He is always most helpful and insightful. I also thank Judges Zela Diaz de Porras, Alcides Munoz, Maria Betancourt, and Migual Vilchez in Nicaragua; and Veronica Dixon in Costa Rica. I am grateful to Camilo Velasquez Mejia and Aurora Cristina Rizo, who serve as research assistants for my study in Nicaragua. I also thank Sandra Mejia and Karla Arias for their wonderful hospitality during my stays in Nicaragua and Costa Rica. Finally, I wish to thank J. W. Walker, whose support and editing skills made this project a success. IV 1 TABLE OF CONTENTS page ACKNOWLEDGMENTS ii LIST OF TABLES viii LIST OF FIGURES x ABSTRACT xi CHAPTER 1 INTRODUCTION 1 1 . 1 The Judiciary and Democratic Consolidation 2 1.2 Cases 10 1 .3 Methodology 1 1 .4 Dissertation Outline 1 2 DEMOCRACY AND DEMOCRATIZATION 15 2.1 Introduction 16 2.2 Definitions: Democracy and Democratic Consolidation 17 2.3 Economic and Social Development and Democracy 21 2.4 The State and the Political Sphere 26 2 . 5 Democracy and the Autonomous State 42 2.6 Civil Society and Democracy 43 2 . 7 The Rule of Law and Democracy 46 2.8 Summary and Conclusions 49 3 THE JUDICIARY AND DEMOCRATIZATION 51 3.1 The Judiciary as a Formal Institution 53 3.1.1 Structural Approaches to the Judicial Institution 54 3.1.2 Functional Approaches to the Judicial Institution 57 3.2 The Judiciary and Relations with Executive and Legislative 60 3 .3 Judicial Power and Public Power 63 3 .4 Transitional Justice and Judicial Reform 66 3.5 Characteristics of the Consolidating Judicial Institution 69 3 .4 Summary and Conclusions 69 v 1 4 MODEL OF JUDICIAL INSTITUTION IN DEMOCRATIC CONSOLIDATION 71 4.1 Conditional Model of the Consolidating Judiciary 73 4 .2 Operationalizing the Model 81 4.2.1 Law Creation 8 4.2.2 The Law 83 4.2.3 The Judiciary 84 4.2.4 Civil Society 86 4.3 The Independent Judiciary 89 4.4 Hypotheses 91 5 CASES OF STUDY: NICARAGUA AND COSTA RICA AND THE POLITICAL SPHERE 93 5. 1 Historical/Cultural Development 95 5.2 Economic Society Development 106 5 .3 Legislative and Executive Relations 108 5.4 Political Parties 1 13 5.5 Civil Society 117 5.6 Discussion 121 6 METHODS OF INQUIRY AND ANALYSIS 124 6. 1 Model and Method of Within Country Inquiry 126 6.1.1 Judicial Structure 126 6. 1.2 Civil Society Opinion 129 6.1.3 The Elicitation Procedure 130 6.1.4 The Sample: Civil Society 135 6.2. Comparative Within Case Analysis 142 6.3 Statistical Analysis 142 6.3. 1 Data 143 6.3.2 The Outcome Variable: Trust 143 6.3.3 The Explanatory Variable: Judicial Independence 145 6.3.4 Age, Ideology, and Occupation 146 6.4 Models 147 6.4. 1 Bayesian Linear Regression Model 148 6.4.2 Bayesian Binomial Regression Model 148 6.4.3 Gibbs Sampling 149 6.5 Uniting the Three Methods 150 7 JUDICIAL INSTITUTION AND JUDICIAL INDEPENDENCE IN NICARAGUA AND COSTA RICA 153 7. 1 Historical Developments 153 7.2 Judicial Organizational Structure 161 7.3 Judicial Appointment Procedure 166 7.4 Judicial Tenure 170 7.5 Jurisdiction and Decision Making 173 7.6 Communication of Judicial Activity to the Public 180 7.7 Judicial Independence and Civil Society 192 vi 8 CIVIL SOCIETY, JUDICIAL INDEPENDENCE, AND TRUST IN THE JUSTICE SYSTEM 196 8. 1 Trust and Fairness 197 8.2 Trust and Judicial Independence 198 8.3 The Full Model of Judiciary and Consolidating Democracy 202 8.3.1 Age 208 8.3.2 Ideology 211 8.4 Ideology, Judicial Independence, and Trust 217 8.5 Trust and The City 221 8.6 Discussion and Conclusion 222 9 CONCLUSION: THE JUDICIARY AND DEMOCRATIC CONSOLIDATION 226 9. 1 The Judicial Institution 227 9.2 Civil Society 229 9.3 Ideology and Social Change 230 9.4 Generalizing the Model 232 APPENDIX A SAMPLE ELICITATION QUESTIONNAIRE 235 B SURVEY QUESTIONS : ENGLISH TRANSLATION 236 C BAYESIAN LOGISTIC REGRESSION FOR ELICITED MODEL 238 D CHI-SQUARED TEST OF INDEPENDENCE OF MEDIA 240 E TEST OF COUNTRY DIFFERENCE IN JUDICIAL INDEPENDENCE 242 F TEST OF COUNTRY DIFFERENCE IN TRUST IN FAIRNESS OF JUSTICE 243 G BAYESIAN LINEAR REGRESSION MODEL OF TRUST 244 H DICHOTOMOUS MODEL OF TRUST IN JUSTICE SYSTEM 246 I BAYESIAN LOGISTIC MODEL OF TRUST (APOLITICAL) 247 J CHI-SQUARED TEST OD DIFFERENCE IN TRUST 249 K TRUST, INDEPENDENCE, AND IDEOLOGY 251 REFERENCES 252 BIOGRAPHICAL SKETCH 275 vii 6 LIST OF TABLES 5- Table page 6- 5- 1 Some social and economic factors of Costa Rica and Nicaragua 95 5-2 Comparison of Nicaraguan and Costa Rican legislatures and presidencies 109 6- 7- 3 Five dimensions and state autonomy 122 1 Elicitation matrix 133 6-2 Elicited coefficients for model of Trust in the Justice System 135 7- 6-3 Multi-stage sampling for Nicaragua and Costa Rica 138 8- 4 Selected variables in Trust in the Justice System Model 144 1 Aspects of the Nicaraguan judicial structure 163 7-2 Aspects of the Costa Rican judicial structure 165 7-3 Posterior Summary for Elicited Prior Models of Trust in the Nicaraguan Justice 185 7-4 Media reporting of criminal activity in Nicaragua and Costa Rica 1 90 5 Judicial Institutions and Judicial Independence 193 1 Trust and Judicial Independence Linear Models 201 8-2 Posterior Summary of Judicial Independence/Country Linear 202 8-3 Trust as linear function of Consolidating Judiciary Models 205 8-4 Posterior Summary: Trust as linear function of Consolidating Models 208 8-5 Dichotomous