PAPER: PROVINCIAL COUNCIL OF MAGISTRATES
Dr. Hugo Ariel dos Santos
The republican system of government that has taken the nation rests on the theory of separation of powers. Following this model, our Constitution gives to each of the branches of government and exclusionary exclusive powers, which are the functions to be performed independently of others. Is essential for this system of government work to respect the limitation of the powers of the various organs and the supremacy of the Constitution.
To this end the National Constitution "placed the judiciary as an authority in the nation and given the task of resolving conflicts that arise within the community on behalf of the state: its judicial function. " It also gave him "the power and duty to implement the pre-eminence Constitution and laws of the nation, giving it control of the legality of the actions of other bodies established by the Basic Law."
What makes the courts of the Judiciary in the "guardian of the Constitution" and those aimed at maintaining the system of separation of powers, a task which must retain their independence when making their decisions.
1994 constitutional reform was in the framework of a technical crisis, political and Judicial Branch of the Nation, which was reflected in a deep crisis community confidence in this body. That is why among the new institutions joined the purpose of balancing the power of three vintage organs of the state, see the Judicial Council as a body to "ensure the independence of judges and the efficient administration justice services " , as evidenced in Article 114 of the Constitution.
This modification of the Basic Law gave rise to a change process and strengthening the judiciary that began with the discussion of the special law that regulated the Judicial Council at the national level, which was taking shape with their operation and actions developed leading to today's date.
Given our federal system of government, the Argentine provinces, which have full autonomy, have adopted the nation as the republican system of separation of powers.
In this institutional framework many of the Argentine provinces have incorporated into their systems, even before 1994, the Council of the Magistracy, albeit limited in most cases given the selection of judges and some including promotion of prosecuting magistrates.
The provincial Judicial Councils focus on this role because, as an indispensable element democratic system the independence of judges, try to eliminate any external interference that may cause obedience other than that the judges due to the law.
In the province of Misiones, the Judicial Council was governed by Law No. 3652 of two thousand, based on the constitutional amendment that had been carried out by the Law No. 3651, which was endorsed by the people of the province in the vote called for that purpose.
Our Judicial Council is limited to the selection of candidates to fill vacant positions lower judges, prosecutors and defenders of the Judiciary for the purpose of raising a proposal to Executive for appointment and approval by the House of Representatives.
The rule established by the Council of the Judiciary in our Provincial Constitution leaves it to the composition of the governing law school. Currently being according to the specific law made by a Minister of the Superior Court of Justice of the Province, a representative of judges and judicial officials, two deputies, two lawyers elected by the Bar of the Province, and a representative of the Executive.
With regard to the latter component, has emerged the following question: Is being the executive would select the candidate, is not participating in the Council of the Magistracy overrepresentation of political power?
On this point in the legislative debate prior to the dictates of the law that regulates the body at the national level was emphasized that the presence of the executive branch does not affect the independence of the judiciary because the Court maintains all its powers to declare the constitutionality of any act produced by the Council which would undermine the independence of the judiciary.
But there is a strong tendency to believe it is necessary in order to reduce political influence in the selection of potential judges, and often confused with the participation of political sector partisanship, cronyism and political expediency, to eliminate the presence of the executive branch in the composition of the Judicial Council, arguing that their participation is ensured in the appointment.
Within this sector there are those who underpin this approach with the view that Judicial Council should adopt a purely technical profile, focusing on the evaluation of legal knowledge. For the suitability of the applicants as guaranteed by this election objectively judge would provide the security necessary to carry out his task from his knowledge and the ultimate responsibility for his conscience.
El acento puesto en la capacidad técnica y ética, aspectos esenciales para que la función judicial sea cumplida dentro del marco de imparcialidad e independencia requeridos en un estado democrático, lleva también a cuestionar el modo en que se elevan las propuestas de postulantes en nuestra ley. El Consejo de la Magistratura provincial eleva la propuesta con quienes fueron seleccionados en orden alfabético y sin orden de merito, lo que no concordaría con la idoneidad de los magistrados que se busca garantizar por medio de este procedimiento de selección.
En este mismo orden de ideas, se cree necesario que los miembros del Consejo fundamenten sus votos, que se sepa cuál ha sido el criterio assessment that has led to prefer one candidate over the other, and that this could be advertised primarily for the executive branch have more information when making their decision, but also for community awareness, which would greater transparency in the selection process and allow for even greater control by the other participants.
If the Judicial Council is an independent body with sufficient criterion to assess the adequacy of judges and officials who actually provide the service of justice in the lower courts could extend its jurisdiction to the selection of applicants to join Superior Court of Justice in order to reinforce the impartiality and independence of those with the power and duty to monitor the implementation of the Basic Law of the Province ultimately.
As seen here, the Judicial Council made the selection of potential judges based on a comprehensive fitness test, for which technical knowledge discusses legal, ethical skills and personal skills candidates, which is why the Council should be making out their duties and should become a training guide for those looking to access these jobs, and especially for those who have been appointed as judges and officials the judiciary to further training in various aspects relevant to the exercise of the function.
ensure effective service delivery of justice is one of the objectives that the Constitution assigns to the Council of the Judiciary Article 114 of CN, reaffirming the role of the judiciary, making explicit the need to fully comply with the role the Constitution assigned to this body and is essential to maintain the rule of law. So that while the Constitutions of the provinces are not literally in its articles, this principle is implicitly contained in them, which makes possible that in times of crisis Judiciary can design legal tools that help to strengthen this body. Taking
view that objective, one of the modifications that may be helpful to overcome the judicial crisis, which has been called art, characterized by undue delay in proceedings caused by a crowding of cases in courts that do not have adequate infrastructure, is to provide the Judicial Council oversight functions so that judges are engaged in specific tasks, ie to make judgments, to decide on court cases, and they depart from the judicial management thing.
Considering all the above can reach the following conclusions:
The Council of the Judiciary is an institution that has been adopted by the Nation and the provinces that compose with different backgrounds but all with the goal of strengthen the independence of the judiciary compared to other state agencies and ensure effective service delivery of justice.
These objectives can be pursued further through amendments to the regulations of the various Councils of the Judiciary, which can improve the selection process, which in most cases is their primary function, providing greater objectivity, openness and transparency, as well as expanding its functions so as to allow to work in the service of justice through lighten the administrative workload of judges and officials that often impair their judicial work, and through of continuing education opportunities for members of the judiciary, among others.
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