Fourth-Branch Institutions and Political Oppositions

Authors

• Hernán Gómez Yuri, Yale Law School
• Fernando Loayza Jordán, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Verfassung und Recht in Übersee

Publication Date

2024

DOI

https://doi.org/10.5771/0506-7286-2024-4-649

Abstract

Fourth-branch accountability can be characterized as a constitutional trust-type mandate to provide intrastate nonpartisan accountability with a broad repertoire of institutional capacities. Fourth-branch institutions play a significant role in protecting constitutional democracies, and their role in the system of political accountability becomes especially apparent when political oppositions are unwilling or unable to perform a partisan check. These institutions partly emerge from distrust in the political branches’ ability to ensure accountability in a partisan world. Thus, they are designed to be insulated from partisan pressures and anchored to the core principles of legality and impartiality. However, fourth-branch institutions do not exist in a supra-partisan realm. We argue that fourth-branch accountability remains intertwined with partisan dynamics and, as a result, these institutions interact with political oppositions in symbiotic or antagonistic ways. We examine these types of interactions in the light of four cases from Latin America. Given these interactions, we address two questions. First, how to understand impartiality. Second, whether the strategic behavior deployed in their interactions with political oppositions is compatible with the impartiality principle. To the first question, we suggest that impartiality is an ideal of institutional design but a blunt instrument to analyze the fourth-branch behavior because it is challenging to employ for a serious assessment. To the second question, we propose distinguishing between different types of strategic stances; responding to partisan alignments is not necessarily problematic if they look at the institution's self-interest within certain margins of excessive aggrandizement and near-cowardice.

Recommended Citation

Hernán Gómez Yuri & Fernando Loayza Jordán, Fourth-Branch Institutions and Political Oppositions, 57 Verfassung und Recht in Übersee 649 (2024).