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August 03, 2017

US Judge Reflects on Judicial Reform Work

On June 2, Brazil President Michel Temer awarded the National Order of the Southern Cross to Judge Peter J. Messitte of the U.S. District Court for the District of Maryland. Messitte is a special adviser to the American Bar Association Rule of Law Initiative’s (ABA ROLI) Latin America and the Caribbean Division Council, and has worked with ABA ROLI for more than seven years. The Order of the Southern Cross is the highest award that can be given to a foreigner by Brazil and was presented to Messitte in recognition of his long-standing work with the Brazilian judiciary. 

Brazil President Michel Temer (left) awarded the National Order of the Southern Cross to Judge Peter J. Messitte (right) as “a token of gratitude for rendering significant service to the Brazilian nation.”  

Upon receiving the award, Messitte said he felt a great sense of professional and personal accomplishment.

“It is an extraordinary, almost indescribable honor when the work of an entire lifetime is recognized, by a country no less, as being valuable,” he said. “For me, there is no greater distinction than the recognition that the Federated Republic of Brazil now gives to me, for a life of dedication to what I love, what I have always loved and what I will keep on loving.”

After graduating from Amherst College in 1963 and the University of Chicago Law School in 1966, Messitte then served as a Peace Corps volunteer from 1966-68. His work on judicial reform has been concentrated in Latin America and the Caribbean region, namely Brazil, but has also extended to other countries such as Guinea Bissau, Mozambique, Angola, Turkey and Thailand. He has previously worked with the International Judicial Relations Committee of U.S. Judicial Conference and the U.S. Agency for International Development, among other organizations.

With more than 30 years of work on judicial reform, Messitte said that although an independent judiciary is the overarching objective, it must be concurrent with a variety of other factors such as the recruitment and training of able judges, the fair application of laws, ample resources and funding, a serious commitment to change at the level of political leadership and a strong dedication to reform, on the ground.

“In the end, judicial reform means more democracy, and democracy is essentially what most of these countries are striving for,” Messitte said. “A lot of it has to do with a change in cultural attitudes. The law is not your enemy, the law is your friend. The law is your protector. That takes some longer-term acculturation. It does not happen quickly. I am always a little distressed to think that you have to have benchmarks, one year or two years — I do not think you get reform quite that quickly.”

Messitte has himself seen and actively participated in a number of these judicial reform processes. For instance, in 1988, following the end of a military dictatorship, Brazil instituted major constitutional reforms guaranteeing a number fundamental rights. They established small claims courts as constitutionally required both in civil and criminal processes. The case load expanded substantially as a result, with thousands of cases flowing into appellate courts. In an order to improve court efficiency, the Brazilian judiciary adopted the concepts of selective discretionary review and binding precedent. With selective discretionary review, only cases of national repercussion were to be reviewed by the high court, and the others were decided by the lower courts. With binding precedent, it was cemented that the Supreme Court’s ruling would hold both for lower courts and for similar future cases.   

“You started to see a reduction in the number of cases by implementing those two very basic, and I might say American, concepts,” Messitte said. “The dialogue that resulted in the implementation of those concepts — discretionary review and binding precedent — really emerged as part of a dialogue over the last, for me, 30 years. And I am proud to say that I was a part of that.”

Messitte also emphasized that ultimately, judicial reform manifests as a change in cultural attitudes, and that he has seen his work contribute to this change over the last 30 years in Brazil.   

“There was an expression that was very common when I first started out and it went something like this: to my friends, everything; to my enemies, the law,” he said. “In other words, the law was so oppressive and erratic that you would wish the law on people you did not like. That is not true anymore.

“It is one thing to be able to set up the physical buildings, and another thing to be able to set up a case management court governance system,” Messitte added. “But in the end, to have the public say they are now looking to the law to promote the values that are important to them, that is important. That is really the ultimate change in attitude to strive for.”

Messitte believes Brazil’s history of development is a testament to the possibility of successful judicial reform.

“Long-term propositions never happen in a short period of time. You cannot expect to see major overhauls in a short space of time,” he said. “And it has not happened in a lot of places (but) Brazil is one place where partially, it has.”

To learn more about our work in Latin America and the Caribbean, please contact the ABA Rule of Law Initiative at [email protected]