Pablo Echeverri[1]
In his sixth Satire, Juvenal asked: “But who will guard the guardians?” This question has occupied Western democracies as they have assessed and refined the role of their judiciaries over time. Proponents of an ever-stronger, independent judiciary have been challenged by those who resist the notion of an unaccountable, co-equal branch of government. At times, these contradictory positions have fostered the perception that judicial independence and accountability are outcomes that cannot be achieved simultaneously – representing, instead, competing solutions to a zero-sum game.
In December 2017, the Robbins Collection welcomed a group of legal scholars and jurists from Latin America and the United States. The workshop began with the premise that judicial accountability need not represent an attack on judicial independence. A primary objective of this meeting was to explore the possibility that accountability, when properly conceived, can enhance independence by bolstering judicial legitimacy. Pursuing this goal requires abandoning attempts to control judicial outcomes and embracing a system of checks and balances in order to prevent and punish bad behavior by judicial actors.
The topic, setting, and participants provided for a rich and dynamic round table discussion with diverse perspectives. With views from the bench, counsel’s table, the United Nations, and academia, the lively debate constituted a true exchange of ideas across languages and legal cultures. At the conclusion of the event, we requested that the participants submit short essays in response to the workshop. To memorialize the inaugural event of what we hope will be an ongoing discussion, we have decided to publish a set of brief but thought-provoking pieces. Although each author had absolute freedom to select a topic, the articles fortunately but perhaps unsurprisingly form a congruent whole as the conversations that began in Berkeley continue to take shape in written format.
With an intra-institutional perspective, Colombian Council of State Justice Edgar González shares his experience in the country’s highest administrative tribunal. He provides an overview of the structure of the Colombian judiciary, a prime example of constitutionally entrenched horizontal independence: the judicial branch is the only one with exclusive disciplinary jurisdiction over itself and thus very little political accountability. Nevertheless, González highlights specific efforts made within the Council of State to enhance accountability through enhanced transparency measures in the form of reports and financial disclosures and the involvement of civil society through an NGO that performs watchdog functions.
But, this example of voluntary measures taken by a single high court constitutes a form of intra-institutional accountability that would fail to assuage all of the concerns of Chilean Professors Cristián Villalonga and Agustín Barroilhet. Barroilhet uses Chile as a starting point to note a regional trend toward an increase in horizontal judicial independence, with the judicial branch as a whole being more willing to assume a prominent socio-political role. The risk of this positive development, he points out, is that judicial elites continue to exercise significant control over lower court judges, which jeopardizes vertical independence.
Villalonga also notes this trend and recognizes the need for greater accountability as horizontal independence increases. He warns, however, that most countries in the region do not possess adequate tools to evaluate judicial performance. He suggests that states (1) develop assessment mechanisms that distinguish between lower and higher courts, which are subject to different sets of expectations and (2) entrust the assessment process to an entity (e.g. Council of the Judiciary) that is not entirely composed of members of the judicial branch, but rather of a mix of judicial officers and legal scholars. Finally, he argues that courts themselves foster a culture of transparency by providing better access to its records and proceedings, echoing the type of efforts highlighted by González.
Villalonga and Barroilhet seem to take the position that increased horizontal independence in Chile is a mostly positive development. The Colombian perspective, however, is more nuanced. Former Colombian Supreme Court Justice, Javier Tamayo, and Alvaro Pereira, address the problems of excessive judicial independence, with a special focus on the Colombian Constitutional Court. Tamayo argues that the Court has willfully ignored the constitutional text and used extreme judicial activism to become an unchecked branch of power that stands above the rest. To support his argument, Tamayo cites clear examples in which the Court used extra-constitutional legal doctrines to blatantly subvert the Constitution and expand its own power. The most salient of these examples was the Court’s decision to give its rulings precedential value, even though the Constitution clearly states that jurisprudence should only be used as an auxiliary interpretative tool.
While Pereira does not subscribe to Tamayo’s position that the Court is the preeminent branch of power, he acknowledges its liberal and self-serving use of questionable interpretation doctrines. Pereira points out that although the creation of the Tutela mechanism by the Constitution of 1991 had the great virtue of providing citizens an avenue to defend their fundamental rights, the Court has adjudicated these cases in a way that not only protects fundamental rights but also expands its own power. Instead of limiting itself to enforcing the rights listed in the Constitution, the Court has created additional fundamental rights, which has imposed unacceptable financial burdens on the executive branch. Moreover, by ruling that tutelas can be used to challenge the decisions of administrative and ordinary courts and declaring itself the ultimate arbiter of these disputes, the Constitutional Court has effectively placed itself above the Supreme Court and the Council of State, creating a major intra-branch “train collision.” Thus, Pereira argues that although the advent of a powerful Constitution Court is on its face a positive development, the Colombian Court’s excessive power grabs have destabilized the judicial branch and led society to question whether it can be held accountable at all.
Closing the loop on Colombia and Chile, Javier Velasco directly compares the origins and development of the Chilean and Colombian constitutional courts. He notes that each court developed mechanisms of adjudication that accurately reflect the original purposes of their respective country’s constitution. The Colombian constitution, drafted as a shining example of liberal democracy to increase popular participation in the political process, gave way to a Constitutional Court that has used its power to expand social rights through the tutela mechanism enshrined in the constitutional text. On the contrary, Chile’s constitution was drafted by the military dictatorship to limit keep the population under control. Accordingly, the Constitutional Court has largely played the role of protecting the conservative legacy of the military regime. Despite their divergent tendencies, Velasco suggests that both countries face the unique challenge of redefining the appropriate role of a constitutional tribunal in a civil law tradition that must balance old and new overlapping tensions: conservatism versus progressivism, localism versus globalism, and, to some degree, common law adjudicatory freedom versus civil law judicial restraint.
Tamayo, Pereira, and Velasco focus their pieces on the expanded political role of the Colombian Constitutional Court and whether it is appropriate or even desirable within the country’s constitutional structure. The focus here is the Constitutional Court’s participation in the political affairs of the nation, in the Aristotelian sense, through its adjudicatory functions. But what of the Constitution’s grant of excessive administrative powers to the High Courts (not just the Constitutional tribunal)? It is these powers that allow the courts to participate not in politics, but in politicking. When the Constitution gives High Courts the power to nominate or appoint other High-Court justices and other powerful officers, like the Prosecutor General and Inspector General, it inevitably creates a favor-trading market. Justices can use their votes in nominating decisions for their own professional or political benefit. The Courts are thus fully transformed into third chambers of Congress, not just in their policy-making role but also in their internal functioning. Perhaps a good first step toward improved accountability could be to limit the actions for which individual justices need to be held accountable. Limiting administrative powers could help keep judges focused on imparting justice and allow society to focus on the proper political role of courts, not the politicking of judges.
Professor Angel Oquendo has the final word in the conversation with a cautionary tale: Venezuela’s story is a haunting example of how partisan control over judicial accountability can lead to democratic demise. As Hugo Chavez’s 1999 Constituent Assembly unlawfully granted itself the authority to investigate and dismiss corrupt members of the judiciary, the Supreme Court upheld their appalling actions and cleared the path for Venezuela’s downfall into authoritarianism. Whether staunch opposition would have been any more effective at protecting the judiciary’s independence than attempted cooperation is impossible to know. Either way, the Assembly ended up dismissing all the justices, thus marking the end of an independent Supreme Court. This, Oquendo argues, is the clearest illustration that the accountability of judges cannot be entrusted to a partisan entity. Only an autonomous, impartial organ can credibly perform the functions of holding judges accountable without eroding judicial independence and democracy itself.
[1] I would like to thank Professor Laurent Mayali for his unwavering support in the conception, organization, and execution of this event. I am also grateful to Sohayla Farman, whose organizational efforts and editorial assistance made the workshop and this digital publication possible.