Judicial Accountability Versus the Separation of Powers

• Author: Steven R. Minegar
• Published date: 01 December 2011
• Date: 01 December 2011
• DOI: http://doi.org/10.1177/1057567711431980
• Subject Matter: Articles

Judicial Accountability Versus

the Separation of Powers:

Perspectives on Brazil’s

National Council of Justice

Steven R. Minegar

1

Abstract

Judicial reformers worldwide have recently emphasized the need to increase judicial accountability

through oversight committees known as judicial councils. In countries where the separation of

powers doctrine is entrenched in the political culture, attempts to establish judicial councils have

caused debate between strict interpretationists who favor an internal control model (comprised of

judges) and loose interpretationists who favor an external control model (comprised of judges but

also representatives from other government institutions). Disagreement over the composition of

judicial councils defined the recent debate in Brazil over the establishment of the National Council of

Justice (NCJ). This case study of the NCJ uses in-depth interviews with key figures in Brazil’s judicial

system, along with congressional records and other secondary sources, to document the narratives

of supporters and opponents of the NCJ. The results include competing views on the requisites of

democratic governance, concerns about the politicization of the judiciary, as well as strictly defini-

tional matters. By exploring the tension between judicial independence and accountability, and the

way that additional considerations informed the debate over the NCJ in Brazil, this study reveals

many factors that promote and that stand in the way of establishing effective judicial oversight.

Keywords

central/south America, comparative crime/justice, court innovations, courts/law, court, courts/law,

legal issues, courts/law

Judicial accountability remains an inchoate and understudied topic in the field of judicial politics.

One of the most misunderstood aspects of this concept is the question of who should be responsible

for ensuring the accountability proponents deem necessary (Kapiszewski & Taylor, 2008). In recent

decades, many countries with common and civil law traditions have sought to achieve a greater

degree of judicial accountability by creating external oversight bodies, known as judicial councils

1

Department of Political Science, Emory University, Atlanta, GA, USA

Corresponding Author:

Steven R. Minegar, Department of Political Science, Emory University, 327 Tarbutton Hall, 1555 Dickey Drive, Atlanta, GA

30322, USA

Email: steven.minegar@emory.edu

International CriminalJustice Review

21(4) 383-401

ª2011 Georgia State University

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DOI: 10.1177/1057567711431980

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(Garoupa & Ginsburg, 2009). These councils are controversial if only because in some cases the

proposed bodies include people from other institutions and branches of government. Critics claim

that judicial councils of this kind violate the principle of judicial independence.

Protecting the independence of the judiciary was a leading concern among judges in Brazil who

opposed the implementation of the Conselho Nacional de Justic¸a (National Council of Justice, or

NCJ), an oversight body that, in addition to including judges from each sector of the judiciary, also

included prosecutors, lawyers from the Brazilian Bar Association, and individuals appointed by the

Federal Senate and House of Deputies. Reformers regarded the ‘‘external control’’ model of judicial

oversight not only as a way to improve the efficiency and administration of the courts but also as a

way to make the courts more responsive to the public. Judges, on the other hand, feared that the broa-

dened composition of the NCJ threatened the high degree of independence the judiciary had long

enjoyed in Brazil, favoring instead an ‘‘internal control’’ model of judicial oversight in which only

judges would oversee the courts.

In this case study, I argue that supporters and opponents respectively used strict and loose inter-

pretations of the separation of powers doctrine to lobby for or against the external design of the NCJ

in Brazil. Supporters of the external model were less persuaded of the need for complete judicial

independence and contended that the activities of the NCJ would be limited to managerial matters.

Opponents of the external model were convinced that complete judicial independence was neces-

sary, and that to broaden the composition of the NCJ to include individuals who were not members

of the judiciary was to invite a dangerous politicization of the courts.

These introductory observations suggest that an analysis of the current debate in Brazil concern-

ing the role and structure of the NCJ can serve as an entry point for generating telling insights into

the factors that promote and that stand in the way of an important feature of judicial reform.

1

In this

case study of Brazil’s NCJ, I use media reports, records of the congressional commission charged

with drafting Constitutional Amendment no. 45, and relevant books and articles on the topic. I sup-

plement the information contained in secondary sources with data obtained through in-depth inter-

views, which I conducted with 11 key informants in Brası´lia in summer 2009.

2

Key informants,

selected using a snowball sampling method, included NCJ councilors, lawyers, judges, and presi-

dents of judicial organizations. From data collected through frame analysis of interviews and sec-

ondary sources, I theorize that disagreement over judicial impartiality, checks and balances, and

council designs fueled the debate over the NCJ.

I divide the remainder of this article as follows. To maintain conceptual clarity, I begin with

literature-based definitions of the separation of powers, judicial independence, and judicial account-

ability. Next, I identify two competing types of judicial councils that emanate from disagreements

over who should exercise judicial oversight. I then explain the methodology used to conduct frame

analysis of the debate over the NCJ and review the history of the separation of powers, judicial inde-

pendence, and judicial accountability in Brazil to show how these concepts shaped the debate over

the NCJ. In my Results section, I draw on secondary sources and the semistructured interviews with

key informants to outline the arguments for and against the NCJ, noting that the two sides in the

debate framed their respective opinions in different ways by using different interpretations of the

separation of powers doctrine. The Concluding section offers details on the three issues that fueled

the debate over the council and suggests topics for future study.

Conceptual Framework

To be consistent about the meanings of the separation of powers, judicial independence, and

judicial accountability, I offer literature-based definitions of each concept and explain the interrela-

tionship between them. To start, Vile (1998, p. 14) defines the separation of powers as follows:

384 International Criminal Justice Review 21(4)