In “A Double-Edged Sword: Judicial Independence and Accountability in Latin America,” author Jessica Walsh addresses the issues of public perceptions of judicial corruption and threats to judicial independence in Latin America. Walsh emphasizes that judicial accountability should be a transparent and impartial system that can sanction “undue governmental influence on the judiciary in addition to nepotistic and corrupt judges.” She surveys relevant international and regional judicial standards and explains how judicial accountability and disciplinary procedures have been abused in Latin America. For example, she addresses judicial appointments motivated by corporatism or nepotism, as well as the removal of judges that refuse to decide in favor of the government. Walsh then concludes with recommendations for preserving judicial independence and increasing judicial accountability.
The Lack of Trust in Accountability Procedures: In many cases in Latin America, the public’s lack of trust in the judiciary makes the judiciary vulnerable to attacks from other governmental actors, many of which have addressed popular concerns by painting judiciaries as biased, self-interested, and democratically unaccountable. The region’s authoritarian past has contributed to mistrust between judiciaries and other actors in government, compounded by a lack of political agreement between judges and the government. The author argues that productive change in this area can only come from better understanding both of the abuse of judicial processes, such as appointment and removal of judges, and the “context of tension between the executive and judiciary” in different countries in the region.
The Legal Framework: The importance of judicial independence has been recognized internationally and regionally, for example in the International Covenant on Civil and Political Rights and the American Convention on Human Rights. The majority of Latin American states have protections for judicial independence in their constitutions, but the way this independence is guaranteed varies by country. Walsh identifies an impartial system for appointments and renewals and guaranteed tenure of judges as critical elements for judicial independence. She sees guaranteed immobility and tenure for judges as important because they ensure that judges can act impartially and independently without fear of being removed or transferred from the position.
Political Interference in the Disciplining of Judges: Despite moves to increase independent oversight of the judiciary and constitutional provisions for independent judiciaries, Walsh identifies five challenges that currently face legal oversight mechanisms. First, public statements against the judiciary and individual judges damage the image of both the judiciary itself and the perception of impartial disciplinary proceedings. Second, informal interference in disciplinary proceedings, which can be difficult to prove, calls into question the integrity of disciplinary bodies. Third, there has been a lack of due process in disciplinary proceedings against judges. Fourth, intimidation of judges and circumvention of judicial bodies creates human rights abuses, and causes judicial independence and public trust in the judiciary to falter. Fifth, there has been an increasing percentage of temporary judges, who are more susceptible to external influences.
Recommendations: Walsh presents a four-pronged approach to protecting judicial independence. She urges the judiciary to embrace and demonstrate integrity on a personal and institutional level, and calls for agreement and publication of standards for the judiciary. The second step is increasing transparency and conducting an independent review of the courts’ practical workings. Third, she recommends clarifying the rules and procedures for disciplining judges in order to decrease arbitrary application of guidelines. The final aspect of the plan is to ensure impartiality of disciplinary processes by providing guidance on handling conflicts of interest and imposing explanatory accountability.
NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).