Transparency in the Era of Populist Politics: What role for the Judicial Branch?

For several decades, transparency has been at the heart of efforts toward open and accountable governing. In the current era of populist politics, by contrast, there is a dominance of contestation of expertise, politicisation of courts and ‘post-factual’ public discourse. The debates on Brexit are one illustration, but many other European countries are part of the same trend. ‘Traditional’ transparency, such as freedom of information, is either irrelevant in how populists garner public support or, as some have argued, transparency itself has undergone an ‘ideological drift’ and no longer adequately serves progressive aims. Judges have become a target too leading to some unprecedented pushbacks, such as the first ever pan-European protest including judges from across Europe protesting against the judicial reform in Poland. This paper focuses on what role the judiciary may play in this context in the courtroom and beyond by looking at several cases of countries in the European Union.

The Open Court and its enemies: a (contingent) argument for publicity in judicial deliberations

Brazil and Mexico are the two rare cases in which Supreme Court deliberations are both public and broadcast live – an arrangement most constitutional judges, scholars, and lawyers would consider a bad idea. A central argument against such publicity highlights the importance of creating conditions for judges to candid exchange arguments and try to speak with “a single voice”. The Brazilian case, however, presents challenges to key assumptions behind these and other arguments in favor of secret judicial deliberations. The benefits of secrecy are contingent on institutional design and the professional culture shaping several dimensions of a court's openness to the public, and are not obtained automatically by giving judges a protected space to try to build consensus. In Brazil, for example, as judges have varied mechanisms to express individual preferences to the public, secrecy in deliberations would unequally empower the judges who are most engaged with the public in other ways.

Without Fear or Favour: The Collegium System of Judicial Appointments and Threats to Judicial Independence in India

Up till 1993, the Executive had the ultimate say in the appointment of constitutional court judges in India. However, distrust of the Executive, born of its attempts to subvert judicial independence, fueled the adoption of the “collegium” system of appointments, which placed the power of appointments with the judiciary. Amidst growing concerns that the collegium system operates in an opaque and often nepotistic manner with no accountability for its decisions, the judiciary has tried to maintain control over judicial appointments, while at the same time, taking tentative steps toward opening up the process to greater scrutiny. This paper describes the competing claims, interests, concerns, and approaches underpinning the Indian judiciary’s attempts to mediate between the threat to judicial independence from an encroaching Executive on the one hand, and an opportunity to shore up its fast dwindling legitimacy by enhanced public accountability in the appointments process on the other.

Seeing and Believing: Examining the Relationship Between Exposure/Publicity and Judicial Legitimacy in the Philippine Democratic Framework

The Philippine Judiciary’s approach to publicity has always been a measured one, focused on insulation, with judges taking a back seat to the elected branches in the public sphere. A recent shift however, has occurred. Due to political events, including removal of Justices, and the judiciary’s legitimizing role in a populist administration’s more controversial actions, many Supreme Court Justices willingly made their sides known and placed themselves under public scrutiny. This Paper tackles the Philippine Judiciary’s reaction to increased scrutiny and publicity and the connected challenges to its legitimacy, as it became inextricably linked to that of the current administration. What is the value of publicity for maintaining or restoring institutional integrity – and for whom? Is publicity a legitimate opportunity for the Judiciary? Or should we treat judges as having no choice in reacting to renewed engagement from citizens seeking new avenues of scrutiny and accountability?

Transformation and resistance: the Mexican Supreme Court publicity system in times of populism

In more than ten years of broadcasting and streaming Plenary deliberations, the Mexican Supreme Court's approach to decision-making and social communication has made visible both strengths and weaknesses. In my paper, and assuming that it is inconvenient or too late to return to a system of secrecy, I will explore what sort of institutional solutions could be put in place to boost the advantages of the system and minimize its drawbacks. In so doing, however, an entirely new element must now be accounted for: the fact the Mexican Executive is now occupied by a President that has openly criticized the judiciary for its distance from “the people”, and for its being a hurdle for social transformation. Analyzing the reactions of the Chief Justice to these messages over the last months, the paper explores the role publicity played in a context where the Court is set to resist attacks and efforts of cooptation, while not abandoning fundamental constitutional responsibilities.