Transparency and participation in the Judiciary: a still pending agenda

The Judiciary has been occupying the center of the public debate, as the recent discussions on the role of the National Justice Council (CNJ) have revealed. And this is extremely healthy. Both the CNJ and the Federal Supreme Court (STF) are fundamental institutions of the rule of law and for the protection of human rights. Six years since the creation of the Council, as part of the Reform of the Judiciary, an assessment of its actions is undeniably positive.

Oversight of the conduct of judges, including allegations of nepotism and corruption, however, is only part of a broader discussion on the opaqueness of the Brazilian Judiciary. We are living at a time when transparency has been recognized as a value for all agencies of the State, and it is expedient to discuss the Judiciary, including the CNJ and the STF, from this same stance.

The Council has performed an important role by conducting the administrative, financial and disciplinary supervision of the Judiciary. The prison outreach program is one successful example of the CNJ’s role, by identifying serious problems in the criminal justice system. The same can be said about the visits made by inspectors to youth detention centers across the country. However, the channels of dialogue between the CNJ and civil society can still be improved, in order to streamline society’s contact with the Council.

Similarly, the STF is becoming more receptive to the participation of civil society. The Court has staged public hearings for important cases and permitted representative organizations, appearing as “amicus curiae”, to take part in the constitutional debate. It is uncertain, however, to what extent the STF is influenced by these interventions. Nevertheless, the agenda of the Court is still obscure, and there are no public criteria for selecting the cases to be heard.

In both institutions, the process of appointing justices and councilors is still removed from society. There is no real discussion – public and participative – on the candidates or the criteria leading to their selection. Different actors, such as Justice and Human Rights Articulation (Jusdh), a group whose membership includes several civil society organizations besides Conectas, have been active this field calling for more openness in the process.

Despite some progress making the Judiciary more transparent, there is still a great deal to be done. The mechanisms of transparency need to be streamlined, the forms of social participation need to be expanded and consolidated and the relations between institutions should be more cooperative. Democracy requires regulation, oversight, transparency and accountability – this should prevail over corporatism. Questions like these can enrich the public debate and allow it to move beyond an internal dispute within the Judiciary. It is an issue that affects all Brazilian society. It is time, therefore, to address it.

Juana Kweitel, Program Director at Conectas.
Eloísa Machado, Advisor for Conectas’ Justice Program.
Flávia Annenberg, Lawyer for Conectas’ Justice Program.

Published in Consultor Jurídico on 01/14/2012.