Adaptive Informal Institutions Governing Judicial-Elected Branch Relations in Paraguay

Since the end of the last century, constitutional and supreme courts worldwide are enjoying a growing importance in political processes, especially in developing democracies, and they often are empowered to decide on central political questions. As in many countries during the third wave of democratization, Paraguay’s new Constitution from 1992 designed a powerful Supreme Court with strong rules of formal insulation from the elected branches of government. Nonetheless, its decisions, especially politically salient ones, are criticized as strongly biased toward the interests of powerful politicians. The court is commonly regarded as political football and is described as highly corrupt. Thus, it does not fulfil its normatively expected role as a neutral arbiter and defendant of basic rights. Instead, political and judicial actors seem to be following a ‘hidden constitution’ with their interactions. Judicial clientelism and corruption can be regarded as aggregated informal institutions that govern Paraguayan judicial-elected branch relations. These diffuse into more specific and widely socially known and accepted informal rules, as, for example, the way a complaint is going to be accepted to be heard by the supreme court by passing through the oficina de admisibildad. The literature mostly describes informal institutions by analyzing their functionality relative to formal institutions, thereby treating these as separated units. On the contrary, with her approach of ‘adaptive informal institutions’ Kellee S. Tsai (2006, 2016) shows that institutions normally have two sides – a formal and an informal one. In many cases, the informal side may be stronger and lead to its actual its performance. The paper argues that in the case of the Paraguayan Supreme Court a range of adaptive informal institutions have been distracting the intentions of the constitution makers to design an independent court. Based on a historical institutionalist approach, it identifies the different sequences of development of these informal institutions and of its endurance. The paper argues that the fact that these adaptive informal institutions governing judicial-elected branch relations are working from inside of the formal rules effectively impedes most attempts to change them. The paper provides new insights on the functioning of informal institutions and their relation to formal ones. Thereby, it adds knowledge not only to the judicial politics literature, where informal politics remain under-researched, but also to the comparative politics literature in general.