Chapter 1: International Standards
of checks and balances is crucial to addressing the potential corruption and
influence that exists within the institutions in charge of the appointment.
In certain political cultures, providing an impartial arbiter may require more
stringent measures to ensure independence. In Nicaragua, seven commissioners appointed by the National Assembly with a qualified majority
of 60 percent head the Consejo Supremo Electoral (CSE), the adjudicative
body for non-criminal electoral complaints. The President and the National
Assembly both present nominations for the position of commissioners “in
consultation with civil society.”113 Despite this checks and balances mechanism, the political parties generally put the independence of the CSE in
jeopardy and elect commissioners with a very strong political profile.
In Brazil, the Superior Electoral Court (Tribunal Superior Eleitoral) uses another interesting appointment procedure.114 The TSE has jurisdiction over
all aspects of elections and regulates the functioning of political parties.
The Constitution is very specific about the composition of the Superior
Electoral Court.115 There are seven judges: three judges are elected from
among the members of the Federal Supreme Court (Supremo Tribunal
Federal); two judges are elected from among the members of the Superior Court of Justice (Superior Tribunal de Justiça); and two judges are
named by the President of the Republic, chosen among six attorneys of
renowned legal knowledge and good moral reputation that are appointed
by the Federal Supreme Court. To maintain the non-political character of
the electoral courts, the judges serve for a two-year period and cannot
hold office for more than two consecutive periods.116
The clear and transparent Brazilian system, which helps to ensure impartiality, can be contrasted with the processes in Jordan and Lebanon. The constitution of Jordan provides that the newly-elected Parliament is the entity
Constitución Política de Nicaragua [Political Constitution of Nicaragua] Jan. 1, 1987, art. 138,
§ 7; art. 150, § 14; E.U. Nicaragua Report, supra note 38, at 23.
114
Brazil Superior Electoral Court, supra note 6.
115
Constituição Federal [C.F.] [Constitution] art. 119 (Braz.).
116
Id. art. 121, § 1; see also, e.g., Ruben Hernandez Valle, Costa Rica: A Powerful Constitutional Body, Case Study 1 (“The TSE consists of three regular judges and six substitute judges
. . . . Their appointment is made by two-thirds of the members of the Supreme Court of
Justice.”), available at http://www.Idea.int/publications/emd/upload/EMD_CS_Costa_Rica.
pdf.
113
41