COUNCIL OF THE JUDICIARY. WARRANTY FOR SELECTING JUDGES?
OUTLINE OF THE PROBLEM:
first question must be asked: How important is a system of selecting judges to improve the transparency and appropriateness?. The immediate answer is a resounding yes.
Now, the Council of the Judiciary is the organ that ensures transparency in the selection process and eligibility?.
Answers will vary, but I think the most successful is "it depends."
ORIGINS:
This institution is organized under various headings:
"Supreme Judicial Council, in Italy, France and Portugal," the Supreme Judicial Council, in Spain , "Judicial Council" in Colombia, "National Judicial Council, in Peru.
our right has prevailed in the name of the Council of the Magistracy. More than twenty years, this institution is incorporated into the Constitution of the province of Chaco. Then she had received in the constitutions of San Juan, San Luis and Santiago del Estero.
Nationally, the proposal for a specific body part in the appointment of judges began to speak in conjunction with the reform of 1957.
This type of bodies is typical of continental European law, in which the judiciary operates as administration of justice, the most egregious examples are those in Italy and Spain. In France, the Council essentially acts as an advisory body, but also have disciplinary powers. In our country the Judicial Council was incorporated as a permanent organ of the judiciary by the Convention, the 1994 reform, which was a profound innovation in the institutional system in Argentina.
Comparative Law
For this analysis, are taken as examples the cases of Chubut, La Pampa, Buenos Aires, Jujuy and regulated in the field of Federal Justice ..
Chubut:
The Council of the Magistracy was created by Law No. 4086, as a result of comprehensive constitutional reform undertaken in the year 1994.
The Council of the Magistracy in an organ becomes extra power, which in its primary mission, to select judges and court officials through competitive examination and history, he added the mission to receive reports of crimes, offenses in the exercise of their functions, supervening incapacity or poor performance, made against judges and court officials subject to prosecution, should instruct the relevant summary findings raise the Superior Court of Justice or the Court of Impeachment
In the first article of the law providing for the composition analysis:
- President of the Superior Court of Justice
- three magistrates with a rank not lower than or equivalent maid
- four lawyers registration with seniority in the title is not less than ten years
- an employee of the Judiciary lawyer with at least ten years old in the same
- five lawyers and non-citizens are not court employees, having the requirements to be elected deputy
- all cases with no less than four years of actual residence in the Province
representatives of different sectors are integrated according to the second article: " The judges and court officials and lawyers for
their peers in both cases even among retirees and pensioners by secret ballot a simple plurality of votes. The electoral act is done in one day in each judicial district.
The five representatives of the people on the occasion of the
general election, a candidate list not necessarily supporters presented each political group intervening in the electoral act to the provincial level. The Executive Branch provides what is necessary for those purposes.
The judicial employee representative by choice who practice the same throughout the province. "
From the foregoing it appears that the technical fields, call Superior Court of Justice, Lawyers and Judges, represent 57% of the membership of the Council of the Judiciary, so that the popular sector is a minority.
the system's critics claim that the social representation is low, there is high corporatism from the legal sector .
also in facts, the so-called representatives of the people, not without a party affiliation, they arise from different political groupings.
Defenders of the system indicate that the majority of technical fields integration ensures suitability for elected judges, and not necessarily the people's representatives have party membership.
The Pampa :
The 1676 law establishing the Judicial Council in the province of La Pampa, body according to the second article of the Act is composed as follows:
- a representative of the Superior Court of Justice;
- a representative of the Provincial Executive;
- a representative legislature;
- a representative of licensed attorneys,
- a representative of the registration counters, which will join the Council of the Magistracy only for the purpose of selecting candidates to serve on the Court counters Accounts of the Province .-
However, the representatives of the sectors selected according to the following formula (art. 3): Representatives of the executive, legislative and Higher Court will be nominated directly by them in accordance to the system each set .-
The lawyers representing the nomination made by direct election and only those enrolled. The election shall be held by and under the control mechanisms established by the Bar and Officers of the Province of La Pampa.
The Act places on an equal footing with political and technical sectors, provided the highest provincial court has no political independence.
Buenos Aires Province :
For of Buenos Aires province, the local constitution provides in Article 175 ".... It will be delegated function of the Judicial Council to select the candidates through procedures that ensure adequate publicity and assessment criteria predetermined objectives. Priority will be given the moral, the appropriateness and respect for democratic institutions and human rights.
The Judicial Council shall consist of a balanced, with representatives of the executive and legislative branches, judges of different levels and the institution that regulates the registration of lawyers in the province. The Judicial Council will be formed with a minimum of fifteen members. An advisory capacity, and Judicial Department, it will consist judges and lawyers and academics specializing .... "
11,868 law grants a specific regulation to the Judicial Council, setting its composition as follows :
- one (1) Minister of the Supreme Court
- one (1) Chamber Judge
- one (1) or Single Judge of First Instance
- one (1) member Public Ministry
- six (6) representatives Legislative Branch
- four (4) representatives of the Executive
- four (4) representatives of the Bar of the Province of Buenos Aires
- The Presidency Council shall be held by the Minister of the Supreme Court of Justice Province integrate it.
In the province of Buenos Aires the political sector represents 55% of the members of the Council of the Magistracy, bone 10 of the 18 members.
Jujuy :
In the province of Jujuy no Judicial Council or similar body by so the selection of judges depends entirely on the political sector, and according to the framework established by the Constitution of the Province in its articles 155 and 158.
Article 155 says: ".... The judges of the Superior Court of Justice and the Attorney General shall be appointed by the Executive with the consent of the Legislature, given in public session. . While the 158 reads: " members of the courts, lower courts and public prosecutor be appointed to three candidates proposed by the Superior Court of Justice by the Executive with the consent of the Legislature, given at a public meeting ."
As can be seen, is a long way to go in the province of Jujuy, as indispensable first becomes a constitutional amendment that allows a subsequent law regulating the establishment and operation of the Council of the Magistracy.
Unfortunately, attempts at reform have sought to introduce, in addition to the Institute of Judicial Council, a political issues, as lobbyists, in addition to "Pineapple effect" that precluded the need for constitutional reform carried forward.
Judiciary of the Nation:
The case of domestic justice is one of the most discussed and applicable in respect of the various professional associations such as the Argentina Federation of Bar Associations.
The law that originally regulated the establishment and operation of the Judicial Council was amended by Act 26 080.
This reform was widely criticized by Technical Sector, and defended by the political sector.
The former composition provided that its members were divided as follows according to the second article: "The Board shall consist nineteen (19) members, in accordance with the following composition:
1 .- The President of the Supreme Court's Office.
2 .- Four (4) judges of the Judiciary of the Nation, elected by D'Hont system must be guaranteed equal representation from camera judges of first instance and the presence of judges, with jurisdiction inside the Federal Republic.
3 .- Eight (8) legislators. To this end, the presidents of the Chamber of Senators and Representatives, at the proposal of the respective blocks, each appoint four legislators one, corresponding to the block two more legislative representation, one for the largest minority and one by the second largest minority.
4 .- Four (4) representatives of federal licensed attorneys, appointed by the direct vote of the professionals with this registration. To be elected he will use the D'Hondt system must be guaranteed the presence of lawyers within the Republic.
5 .- A (1) representative of the Executive.
6 .- A lawyer, professor of university chairs regular powers of domestic law chosen by their peers. To this end, the National Inter-University Council shall establish the pattern and organize the election of the representative of academic and scientific fields. "
The new law sets the following composition:
1. Three judges of the Judiciary of the Nation, elected by the D'Hont system must be guaranteed equal representation from camera judges of first instance and the presence of judges, with federal jurisdiction within the Republic.
2. Six legislators . To this end, the chairmen of the Senate and House of Deputies a proposal from the parliamentary political parties, appoint three legislators each, corresponding to two to one majority and the largest minority.
3. Two representatives of the federal licensed attorneys, appointed by the direct vote of the professionals with this registration. One of the representatives must have real home at any point inside the country.
4. A representative of the Executive.
5. A representative of the academic and scientific fields which must be regular university chair professor of powers national law and have a proven track record and reputation, which will be chosen by the National University Council with an absolute majority of its members .
That is, previously the technical sector represented 52% of members (10 of 19 members), while in the technical sector now accounts for 46% (6 of 13).
Its functions include:
- by public competition Select applicants earlier instances industrial tribunals to the Supreme Court of Justice of the Nation, and submitting proposals in triples binding to the Executive for appointment.
- organize and direct a Judicial School.
- Managing resources and implement the budget that the National Budget Law allocates to the judiciary.
- exercise disciplinary authority over judges, and accused before the Trial Jury, eventually ordered his suspension.
- issue the rules relating to judicial organizations, the supplementary regulations of the procedural laws and all regulations necessary to ensure the independence of judges and the effective delivery of servicesjustice
POSITIONS FOR AND AGAINST REFORM OF THE NATIONAL LAW OF THE COUNCIL OF THE JUDICIARY.
favor of reform:
Advocates of reform claim that the criticisms voiced are biased because the correct changes, among other things, reduced participation of bodies arising from popular election, that is, more democratic legitimacy.
indicate that some opposition political leaders and opinion makers have fallen in alarmist terms, giving the national government fascism, messianism, dictatorship, political regression, endanger the institutions of the Republic, subjugate the judiciary.
The Council of the Judiciary and the Prosecution Panel was created by the 1994 constitutional reform. There reduced the role of the organs of popular representation in the processes of selection and removal of the national courts of lower instances. Is he said the possibility of President's decision, to limit it to choose from a list proposed by the Judicial Council as a result of a contest.
The Senate continues to the agreement. In the removal of these judges, completely suppressed the action of the chambers of Congress. The Law Council of Magistrates and the Jury of Prosecution, was given a reduced involvement to organs arising from popular election, that is, the most
democratic legitimacy, giving considerable space to the sectoral representation, called also functional or corporate.
The adherents of reform note that six years of the Judicial Council is the right time to evaluate its performance, its successes and failures and to address reform.
point out that in terms of selection and appointment of national judges are self-limited, by Decrees 222/03 and 588/03, to publicize the study and allowing applications to any interested party comments . This function is now performed with a transparency like never been done before.
reform advocates make that Congress is seeking a comprehensive reform of the functioning of the Council of Magistrates and the Jury of Prosecution and not only the changes Council composition as some critics argue. The project replaces or amends several articles of the law.
emphasize that the reforms are about the Board's committees to provide greater functionality. Sets the publicity of documentation. It favors the elimination of two-thirds majority for decisions of lower level, remaining two thirds for the most important. Promotes the unification of the discipline and charges commissions with powers to dismiss complaints or treated as a disciplinary issue or subject of prosecution.
indicate that reducing the number of members, from twenty to thirteen, provided a quorum and the necessary arrangements for making decisions. Achieving consensus is the essence of the collegiate bodies.
functional view of the desirability of a less numerous body, all groups that the Board must give something, except the executive branch, which has one representative and its elimination would mean the violation of constitutional provisions.
representation in the legislature, many advisers have parliamentary majorities and minorities what Reformists believe that a decision was unfortunate, because the people elect a party to govern, and others to the role of opposition. The ruling, arising from the popular vote, must necessarily have a larger space than minorities. In the project two counselors are assigned to the majority of each chamber, and an advisor to the first minority in each. Note that the Constitution does not mention the parliamentary minority representation in the Council of the Magistracy.
understand that the Council's composition is designed to ensure constitutionally foreseen balance between "the representation of bodies resulting from elected politicians "and the representation of the sectors. Seven directors for the first six for the latter.
believe that there is balance, because no one can sensibly think that the parliamentary representation of minorities act consistently with the representation of the majority.
They claim that has been played to make beads from prejudice against the Government. But that math does not hold, talk of a "ruling bloc" in the Board, adding to the representative of the executive and the directors elected by most of the cameras.
Finally they note that five out of thirteen can not prevail over eight. The quorum of the Council is going to be seven, five are not enough to prevent it. Except in exceptional cases that require two-thirds of Council decisions may be taken against the will of the "official" and even in his absence.
Against Reform:
Here is listed in the column the various technical sectors, especially the various professional associations in the country, who through demonstrations as specific action plans, have sought reverse 26080 law.
Argentina Federation of Bar Associations is said about the March 17, 2006 on board meeting held in Tandil, in which it was resolved:
1) Ratify all actions taken by the Chair and Board of FACA and all federal Lawyers Colleges, in order to inquire about the penalty, promulgation and publication of the reform bill of the Judiciary Council of the Nation and the Trial Jury's Office .-
2) declare that kept all the vices and censorship that disqualify the statute as unconstitutional, intrusive and inappropriate and in particular en cuanto a la forma, método, alcances y contenidos de la reforma sancionada junto a los restantes considerandos indicados.-
3) Decidir y ratificar la resolución de iniciar todas las acciones legales pertinentes por ante todas las jurisdicciones competentes a los fines de demandar y lograr la inconstitucionalidad de la ley, apreciando la oportunidad de articular todas las medidas e instancias procesales con inclusión de la competencia supranacional emergente del Pacto de San José de Costa Rica y demás tratados internacionales incorporados al derecho constitucional argentino.-
4) Continuar en forma permanente con el seguimiento evaluatorio conforme se desarrollen las restantes acciones a implementar por la FACA and schools around the institutional continuity of membership on the Council of the Magistracy of the Nation address to the text of the law
The preamble of this resolution states that violated basic principles of Republican system of government such as the division of powers, respect for the letter and spirit of the Constitution, equality before the law, strengthen justice and ensuring the independence of the judiciary.
26,080 indicate that the law threatens certain guarantees citizen and native and foreign residents who wish to dwell on Argentine soil.
That violates the balance that the Constitution requires the composition of their estates and the representation of all legal, pluralistic representation and participation of academics and university representatives, the constitutional guarantee of Judicial Administration , Judicial Reform and equal treatment of all the constituent members of that body. These grievances are evident in the reform of the composition of the Trial Jury for its manifest imbalance denaturing the institution is included in Article 115 of the CN, along with the inequitable integration into the amount and manner of electing members injuring the constitutional provision which established the institute in the 1994 reform.
The Bar Association of San Isidro, within its institutional position in line with views expressed by the FACA, stressing that reform requires lawyers to defend the Constitution.
The CASI indicates that the rule does not withstand constitutional review of serious, objective and impartial, as its provisions face an open, irresistible and so rude to have the arts.114 and 115 of the Basic Law . The decrease in the number of Council members was at the expense of judges and lawyers. But on particularly with respect to lawyers, annoying and unwanted presence for their lack of belonging to the state and groups that form the political body, making them unreliable for their interests.
STAFF POSITION
After exposed to different positions on the reform of the Law 24937, it is time to make a personal position, which is put into consideration the Young Lawyers Committee of the FACA.
In this regard, I think you should not miss a fundamental principle when making any analysis which is the independence of the judiciary.
Argentine constitutional design respond to the republican state, and therefore respecting the tripartite division of powers by giving the judiciary the judicial function with a double purpose: a) regulate the relations of private law in case of conflict, b) to ensure individual rights against state power and control the constitutional legality.
If the former is acceptable to talk about the role justice, giving the sense of service in the interest of individual or collective, in the second content of the role is given by the proper exercise of power under the Constitution.
The concept of judicial independence is linked to the comptroller and arbitration functions. Mal can decide fairly who is subjected to internal or external pressure in the discharge of the function. So that judicial independence must also ensure in two ways: a) as autonomy from the executive and legislative branches, and b) in relation to particular conflict to decide.
In the first sense, independence means independence and exclusivity. In the second sense, the independent action of the judge in the case secured by a network of functional guarantees and mandates:
A) Fairness
B) Immobility
C) Intangibility of remuneration
D) Immunity
opinion
E) immunity on the person and at home
judicial independence also means functional independence: each judge is authorized to interpret and apply the law, not subject to any hierarchical subordination. Unless, of course, when you enable the review of the decision of a judge by a superior court hierarchy by way of legal recourse.
Disciplinary authority is legitimate only so long as its exercise does not conceal an attack on judicial independence.
Now, with the creation of the Judicial Council of the Nation is advanced over independence of the judiciary in the sense that it has stripped the Supreme Court's Office of the powers of management .
was placed in the hands of this Council the power to manage resources and implement the budget that the National Budget Law allocates to the judiciary and issue regulations relating to judicial organizations, additional regulations of the procedural laws and all regulations necessary to ensure the independence of judges and the efficient administration of justice services, and being composed mainly of political power (members of other branches of government), the invasion of a power in another becomes apparent.
Only the court's remaining technical and legal powers, that is, to sentencing.
As for the positions expressed above, I understand that a point has both, but state representatives committed the grave mistake of analyzing a single element to consider.
Indeed, democratic sustenance is essential when integrating the body that will elect the judges, but in the case of a state power primarily technical, legal sectors acquire a supreme significance.
advocates the formation of the political majority, speak of democratic representation, transparency in the process, but forget to refer to the qualifications of elected officials, and who but lawyers and judges can ensure the adequacy .
understand that the principles that should govern the laws regulating the Judicial Council are: support democratic suitability in the selectors and selected, transparency in the selection process and speed of processing.
The formation of the council of the judiciary must ensure equal sectors, so it does not become a political tool and not in a corporatist body.
CONCLUSIONS
In conclusion to this paper, I propose the following:
- support everything done by Bureau of FACA and All Bar Associations of the integrated, in order to challenge the enactment, promulgation and publication of the reform bill of the Judiciary Council of the Nation and the Trial Jury's Office
- declare that the powers of management and administration of the judiciary would be restored scope of the Supreme Court's Office.
- declare that the formation of the council of the judiciary must ensure equal sectors, as stated in our Constitution.
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