“But who will guard the guardians?”
On Saturday, December 9th, 2017, the Robbins Collection hosted a symposium at Berkeley Law entitled, “Judicial Independence and Accountability in Latin America.” The one-day event held in the Robbins Reading Room addressed the possibility that judicial accountability—when properly conceived—can enhance independence by bolstering judicial legitimacy in Western democracies. Moderated by Berkeley’s Lloyd M. Robbins Professor of Law Laurent Mayali and Robbins Postdoctoral Fellow Pablo Echeverri, the symposium was attended by an esteemed group of legal scholars that included Berkeley Law professors, a Justice of Colombia’s Council of State, a Former Justice of Colombia’s Supreme Court, a Regional Adviser for UNESCO, and professors from the U.S. and South American academic institutions.
Symposium organizer Pablo Echeverri considered the event’s topic as a response to a question posed in Juvenal’s sixth satire: “But who will guard the guardians?” For Mr. Echeverri, the symposium was an opportunity to address Juvenal’s question in a contemporary context and discuss the challenges of achieving an equilibrium between judicial independence and accountability. Mr. Echeverri said: “The current wave of populist politics worldwide poses threats to the rule of law that must be answered, in part, by a strong and independent judiciary. It is important not to confuse the need to ensure that the judiciary be subject to appropriate checks and balances with the populist rally cry that courts must be accountable to majoritarian politics.”
In an effort to cultivate comparative dialogues from a range of national and regional perspectives, Professor Mayali and Mr. Echeverri moderated discussions among all participants in two major sessions. In his opening address to the group, Professor Mayali touched upon the symposium’s lineage to Lloyd M. Robbins’ past as a Latin American legal scholar and translator of seminal Spanish civil law texts, such as the Leyes de Toro. The first session, “Institutional Design: Transnational Initiatives and Domestic Realities,” began with an introduction of UNESCO’s current initiatives from the agency’s Regional Adviser of Communication and Information, Guilherme Canela de Souza Godoi. Adviser Canela elaborated on UNESCO’s participation in the Ibero-American Summit, an annual congregation of twenty-three Ibero-American Supreme Courts for the purpose of implementing international standards on access to information and judicial transparency. Following Adviser Canela’s introduction, guests spoke comparatively on the design and structure of domestic institutions in countries such as Argentina, Chile, Colombia, and the United States, that have contributed to, and combatted against, the fraught state of judicial independence and accountability.
“Transparency entails a risk”
The morning’s discussion on institutional design and judicial initiatives was expanded upon in the second session, “Judicial Culture and Public Expectation.” Conversations in the afternoon session considered impartiality in judicial transparency. Additionally, participants discussed how accountability functions as a meeting point of institutional structure and judicial culture. A major point brought to discussion was “whether transparency entails a risk,” and the possibility of attack on judiciaries as a result of transparency.
“Judges have shown courage and actively respond to social concerns at critical times, even while experiencing difficulties in finding the borders of their powers and a balanced relation with politics.”
Colombia’s former Justice of the Civil Chamber of the Supreme Court Dr. Javier Tamayo critiqued the idea of impartiality with regard to the media’s influence on judicial transparency. Dr. Tamayo found a problematic interplay between the judiciary and the media that occurs after a summary of decisions and arguments are publicized while the official ratio decidendi of Colombia’s Constitutional Court is being written. Dr. Tamayo expressed concern, particularly for controversial cases, over the influence of public debate and public pressure exerted on the judiciary before a ratio decidendi is published. “For instance, with the Arbitration Statute [Law 1563 of 2012], the Court declared that it was constitutional, but we waited six months to know why. In that period, different academic forums discussed the potential reasons. The Court will write its decisions based on these discussions. The concern is that these decisions might create precedent. Is the media reporting creating a precedent? Or is the ratio decidendi, released six months after the explanation of arguments, the one that creates the precedent?”
Dr. Tamayo’s questions were met with challenge from participants who advocated for the media’s access to information, “The pressure of the media and civil society is justified because they want to and should know.” Berkeley Law doctoral candidate Alvaro Pereira found a silver lining in the continued challenges presented to Latin American judiciaries, saying, “Judges have shown courage and actively respond to social concerns at critical times, even while experiencing difficulties in finding the borders of their powers and a balanced relation with politics.”
“A variety of perspectives and ideological positions”
“As a young academic, the experience was unique. Not only for having the time to learn from experienced judges and legal scholars, but also for being able to propose alternative reactions to current phenomena and potential avenues for change.”
The symposium was brimming with a mix of English and Spanish conversations among participants representing an array of countries and institutions. Berkeley Law was well represented by Professor Mayali, Mr. Echeverri, Professor Amanda Tyler, Professor Eric Rakowski, and Robbins Visiting Professor Amnon Reichman. The event was not limited to professors—two Berkeley Law students participated in the one-day event. Doctoral candidate Alvaro Pereira and master of law candidate Javier Velasco Villegas both took part in the day’s discussions. The pair considered the experience an invaluable opportunity to engage with—and learn from— the group of esteemed academics and judicial representatives. Mr. Pereira said: “As a young academic, the experience was unique. Not only for having the time to learn from experienced judges and legal scholars, but also for being able to propose alternative reactions to current phenomena and potential avenues for change.”
Academic attendees included Professor Angel Oquendo from the University of Connecticut School of Law; Professor Agustin Barroilhet from the Department of Economic Law at the University of Chile; Professor Cristian Villalonga from Pontificia Universidad Catolica de Chile Faculty of Law; Professor Julio Gaitan from Colombia’s Universidad del Rosario Faculty of Jurisprudence; and Professor Maximo Langer from the UCLA School of Law. Adviser Guilherme Canela represented the agency of UNESCO, while Justice Edgar Gonzalez Lopez and Former Justice Javier Tamayo Jaramillo represented the judicial branch. Justice Gonzalez is the current president of the Consultative and Civil Service Chamber for the Council of State of Colombia; Dr. Tamayo is a Former Justice of the Civil Chamber of the Supreme Court of Colombia.
When asked about the representation of the judicial branch, academic institutions, and an agency like UNESCO, Mr. Echeverri found it “beneficial to have a variety of perspectives and ideological positions that enriched the conversation. The academics provided a strong framework for the discussion upon which country and international experts could contribute with practical examples and specific policy proposals.” Symposium participants will each write a response paper to the symposium in the coming weeks. The Robbins Collections hopes to publish these response essays as a compendium for public and scholarly use in the summer of 2018.