Image Source: Caimi
May 1, 2017
REGION: Europe and Eurasia, Western Hemisphere

In “Constitutional Reform in Brazil: Lessons from Albania?” Richard Albert, Juliano Zaiden Benvindo, Klodian Rado, and Fabian Zhillan highlight recent constitutional and judicial reforms in Albania to suggest ways in which Brazil might combat widespread judicial corruption. Focusing primarily on corruption in the Brazilian judiciary, the authors draw on strategies used in the 2016 Albanian constitutional reforms and their experience as consultants to an Albanian Special Parliamentary Committee. While the authors acknowledge that Albanian constitutional reforms are too recent to assess their long term-effects, they seek to raise questions for Brazil to consider.

Widespread corruption can be found in the Brazilian judiciary at all levels and in varying forms. Modern judicial corruption in Brazil is connected to Brazil’s transition to liberal democracy in the late 1980s, which left the judiciary largely in its pre-democracy state: secretive and shielded from independent oversight. Brazil’s constitution protects judicial independence, and those outside the judiciary know little about judicial deliberations, the promotion of judges, or allocation of resources within the judiciary. While there have been genuine attempts to fight corruption in Brazil, most have proven unsuccessful.

The authors note that while corruption in Brazil is severe, corruption in Albania has been even greater. Prior to recent reforms, the Albanian judiciary was plagued by a lack of judicial independence, and bribery was commonplace. Attempts to reduce judicial corruption have had little to no impact. In 2016, however, Albania began a slow but meaningful constitutional reform process that has led to significant changes to the judiciary. These changes focused on reforming existing judicial institutions, creating new institutions, and vetting using external actors.

To reform existing judicial institutions, Albania’s Constitutional Court, High Court, High Council of Justice, and ordinary courts have all been restructured. One important example is the amendment made to article 126: under the amendment, Constitutional Court judges no longer enjoy immunity from criminal prosecution “where the judge acts based upon personal interests or malice.” Other institutional reforms include term limits in the High Court, restrictions on self-promotion, and a requirement that all judges pass a mandatory background investigation.

Additionally, Albania has created three new institutions to fight corruption: the High Justice Inspector, and the Justice Appointments Council, and specialized courts have been created since the new constitutional reform. These institutions are designed to handle complaints against judges and verifications of judge appointments, as well as deal with corruption at the legislative and executive levels.

Finally, transnational vetting of judges has been implemented using external actors. The creation of the International Monitoring Operation (IMO) relies on external actors to draft and implement reforms, making it highly controversial. The IMO exists to appoint International Observers, “establish vetting institutions, monitor their activity, and give recommendations,” and oversees vetting bodies with the power to suspend or dismiss any Albanian judge.

While the reforms in Albania are promising, the authors take caution in using them as a framework to make suggestions for Brazil. In conclusion, the authors pose the following three considerations for Brazil: whether political actors might accept advice from abroad on strategies for combating judicial corruption, whether the fight against corruption will be successful through the creation of new institutions or the reconstruction of existing institutions, and whether liberal democracy is a problem to be addressed. These are all considerations that the authors believe Brazil must address if it wishes to achieve meaningful constitutional reforms to reduce judicial corruption.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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