Cristián Villalonga Torrijo
Assistant Professor of Law
Pontificia Universidad Católica de Chile
The balance between judicial independence and accountability is one of the most relevant topics in current law and politics scholarship. On one side, judicial independence constitutes a safeguard of the rule of law that allows judges to take on unpopular decisions without political retaliation, which has been identified as a guarantee to the republican regime at least since Hamilton’s writings in The Federalist. On the other side, judicial accountability means that judges are responsible for their behavior and that public powers can assess if they perform their tasks under the criteria of integrity, efficiency, and competence. At first glance, they seem to be two conflicting legal principles that are mutually exclusive since an independent court, by definition, should not be submitted to any kind of control to be truly independent. Otherwise, its conditions for impartiality and neutrality would be at stake.
Theoretically, however, these are not opposite concepts. As Sandra Day O’Connor asserts, they could be two coherent values that mutually reinforce each other.[1] If courts are properly and transparently accountable, they can build a strong authority over time. Such an authority increases the political cost of attacking judges and consequently, strengthens their independence in the long term. Nevertheless, the balance between these two political values creates a set of challenges. In this brief report, I examine the context in which the debate on the equilibrium between judicial independence and accountability have emerged in Latin America during the last several years. I intend to address one of the critical institutional knots puzzling policymakers: the assessment of the judges’ performance.
We could identify several variables that, when set in the contemporary political process, trigger our growing anxiety regarding the foresaid balance. During the last several decades, we have seen an increasing relevance of courts’ decisions to public life, which have changed their traditional patterns of deference regarding the other two branches that were dominant until the mid-twentieth century. Currently, Latin American courts exert an active surveillance on administration. The courts apply fundamental rights and indeterminate legal principles with some degree of discretion and resolve the claims of a more unsettled society that has a significant repertoire of legal instruments (e.g., class actions, structures of public interest litigation, constitutional review, etc.). Thus, for example, we can observe that some of them have had a consequential role in policy-making, such as the Colombian Constituional Court and the Argentinian Supreme Court in some specific cases, like “Mendoza” (2008), a decision that ordered the decontamination of the Río Riachielo Matanza basin. In the same light, other courts have effectivelly curbed corruption from gaining public authority, like the Brazilian judiciary (e.g. Lava Jato case since 2014). Simultaneously, political elites have less space for controlling courts than they used to in the past. In the region, national politics increasingly presents a growing fragmentation, making the selection and the disciplining of judges more difficult processes. Nowadays, Latin American judges enjoy new levels of autonomy that were not common in the region, but there are significant risks that they become an unchecked power.
At the same time, the demands for judicial accountability coming from the international arena and the internal sphere have emerged relatively late, provoking a delay in the legal reforms in this realm. Foreign investors and international organizations have certainly required new standards of judicial independence as a guarantee to property rights, equitable treatment, and democracy since the Washington consensus in the late 1980s. However, in the beginning those external demands were focused on judicial independence and did not consider accountability as a critical issue. This last aspect has risen only recently as part of a newer agenda that holds a more complex vision of the rule of law (e.g., Banglore Principles of Judicial Conduct 2002, the International Framework for Courts Excellence 2008). Similarly, the internal political demands to create structures for judicial appointments and discipline have emerged with enough strength in the last two decades, for as long as the power of courts have increased (and, partially, as part of courts’ own demand for autonomy as well). As matter of fact, the most important organisms that illustrate that direction, such as the Argentine Consejo Superior de la Magistratura (1998) and the Conselho Nacional de Justiça in Brazil (2004), are relatively new institutions. Today, these entities face important tasks ahead to consolidate their role.
Currently, there are severe obstacles in the implementation of this demand for judicial accountability in Latin America, where population refers high indexes of distrust on courts. Some countries, like Chile and Uruguay, have a strong institutional tradition of judicial independence, and accordingly, their judges see any attempt to establish accountability measures as a sort of partisan interference on courts. These demands for accountability happened after a period in which courts were criticized for the passive role they played during the military dictatorships, and, at the same time, when they began to be called into question due to their increasing intervention reviewing the constitutional standards of public policies. In other countries, like Argentina, judges have hardly opposed pro-transparency measures (although judicial decisions require the full disclosure of information of other public agencies). Likely, in these last cases, judges have begun to constitute a self-interest group that intends to obstruct access to information, such as high salaries, extended vacations, and tax exemptions. Thus, the debate on the balance between judicial independence and accountability in Latin America has come out in a particular juncture that allow us to understand its urgency and its obstacles.
Within that scenario, the analysis of judges’ performance has turned into a critical aspect in which the balance between accountability and the positive assets of independent courts are determined. That assessment has become one of the most significant focal points of our obsession with full transparency in public governance today. At a more micro level, however, several institutional knots arose that should be resolved by refined legal arrangements.
Today, the evaluation of judges’ tasks are inadequate since most of the region lacks a transparent and sophisticated measurement of their performance. In the course of several decades, the political actors of the region were reluctant to establish clear mechanisms of measurement under the argument that they could affect judicial independence.[2] By institutional inertia, such a responsibility was granted to the internal structures of the judiciary, which did not hold the necessary expertise to develop a proficient mechanism of assessment. In a similar vein, the recent efforts to measure judicial performance, headed by a narrow understanding of public management, have been focused on economic efficiency to associate budgetary assignment to courts, without providing a more problematical understanding of judicial decision making. As a result, higher courts tend to quantify the number of processes in which lower judges issue a decision, generating negative incentives to finish cases earlier. Occasionally, these evaluations also consider sanctions and other diminishing aspects, like a judge’s “excessive exposure” to mass media. On average, almost all judges obtain good evaluations. As a result, they move up ranks according to seniority and are attached to several negative incentives. For instance, they are incentivized to (1) not satisfactorily explain the justification of many of their decisions, (2) try to finalize cases earlier, and (3) be less attentive to the attainment of their tasks, because they observe that there are so many judges in similar positions that the probability of moving up in their careers diminishes. Additionally, the population perceives that courts have an important degree of opacity, motivating high indexes of distrust on local judiciaries throughout the region.
Several legal reforms could be helpful to reinforce the balance between accountability and independence, such as a revision of the appointment process. However, those related to the measurement of judicial performance can have a particularly critical effect. This is not the appropriate opportunity to discuss them in depth, but a brief description sheds light on the point.
First, Latin American countries need to create a more complex measurement of judges’ performance. This should not only include disciplinary aspects, but also indexes and benchmarks to examine the efficiency of managing their dockets, as well as, the perceptions of the users of the judicial system and the justification of their decisions. Naturally, this implies the application of diverse methodologies to observe the various aspects of judicial work: statistics on the management of cases (e.g., number of cases ended), periodic surveys, and an in-depth analysis of representative samples of decisions by legal scholars. Such multi-method strategy can allow for a more complete view of judicial performance, avoiding distortions associated with a monochromatic approach focused only on the incentives for efficiency, which can affect the quality of adjudication rendered by each judge.
At the same time, in the application of these measurments, a set of adjustments to the institutional design is needed to address some of the negative incentives quoted above. For example, the assessment must separate lower courts, for which efficiency could seem more critical for the entire judicial system, from higher and some specialized courts, for which the justification of their decisions is more relevant. The ponderation of economic efficiency and justification should not have the same weight in each section of the judiciary. By the same token, the performance of the judge must have consequences in their salaries and not only in their movement up the ranks (particularly if that movement is less probable due to the high number of low-ranking judges).
Second, the organ upon which rests the ability to assess the performance of judges should also be revisited. As Daniel Brinks has shown, the assessment of the decisions themselves in a neutral stance represents a major challenge. The definition of merit, particularly regarding judicial decisions that do not follow precedent or the consensus of courts, will have different results depending upon the mechanisms of oversight. If this task is assigned mostly to judges, there will be important constraints to internal decisional independence, as is the case in Brazil. By contrast, if this is entrusted to political representatives there is a significant risk of capture of the judiciary by partisan groups, like in Argentina.[3] Thus, it seems that a Council of the Judiciary that incorporates a mix both of higher-court judges, representatives and legal scholars is the best option to balance independence and accountability.
Finally, the full access to higher courts’ tasks results elemental to any sincere attempt to scrutinize judicial performance, serving as a sort of second check exerted by all of society. The judiciary should promote a change in their institutional culture, assuming that transparency is one of their primary assets. A higher standard of accountability should establish the principle of open justice (open court) as a pivotal structural value. This includes full access to records of higher-court hearings and the establishment of spokespersons to explain high-impact sentences. The current culture of transparency demands a different set of scrutiny tools over judicial tasks, which includes a full disclosure of higher court hearings through television or online channels as well. At the same time, this should imply a greater time investment from the courts in promoting empirical research and specialized journalism to analyze judicial decisions, assuming that is also part of their business. Although this process of openness could initially affect the authority of the judiciary, which will be seen embedded by disagreements and ideological leniencies, this contributes to rebuilding the trust of society upon them according to a more realistic perspective.
In the end, judicial independence and accountability can be complementary values, but their match requires a set of institutional arrangements that allows for judicial transparency to strengthen the courts’ role over time. Such a delicate equilibrium does not only depend on abstract ideals or the general political context that explain the conditions of this debate. By contrast, and to a big extent, this is contingent on some mechanisms such as the appointment process, tenure rules and the measurement of judges’ performance, among others. Regarding the latter aspect, Latin American countries still have several reforms ahead. Only if they can solve this issue proficiently, can they rebuild a legal culture where judicial independence and accountability are part of the same virtuous circle. Otherwise, courts will compromise the sources of their authority in the long term, putting the rule of law at risk for years to come.
[1] Sandra Day O Connor, Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An introduction. 86 Denv. U. .LRev. 1 (2008)
[2] William C. Prillaman, The Judiciary and Democratic Decay in Latin America. Declining Confidence in the Rule of Law 15-29 (2000).
[3] Daniel Brinks, Judicial Reform and Independence in Brazil and Argentina: the beginning of a new millennium? , 40 Tex. Int’l. L.J. 595 (2005).