The new Chilean constituent process has delivered, in a first stage, to the expert commission, the construction of a new Constitutional text. Our most relevant institutional designs and competition systems are at stake. On the other hand, the debate and generation of rules to give protection to the most nuclear and critical rights and guarantees to consolidate our democratic political system is focused.
Undoubtedly, one of the central components for the genuine consolidation of democracy in our country is rooted in the type of constitutional architecture that is approved, one of whose pillars are the mechanisms that ensure separation between the different functions of the State and the mechanisms of checks and balances that manage to be installed within each of them. Indeed, a design is required that avoids excessive concentrations of power in a single branch of government, and at the same time, mechanisms that ensure that within each power it is distributed, avoiding risks of capture by interest groups that compromise the functions of each one.
In the case of the jurisdictional system, called the Judicial Power in the current constitutional text and in the initial proposal of the expert commission, the aims of any reform should be to guarantee a framework of judicial independence, both external and internal. That is: judges genuinely independent of other branches of government and, at the same time, independent of bureaucratic structures of power within the same justice system, which could affect their autonomous ability to decide the matters entrusted to them to adjudicate. The same institutional designs must be able to guarantee the existence of impartial judges both objectively and subjectively.
This is probably one of the central tasks of the current expert commission and this is at stake not only our organic constitutional physiognomy but the consolidation of a democracy in form, capable of guaranteeing each person their rights before any organ or power of the State.
As can be seen from comparative experience and debates in various parts of the world, attempts to politically capture the judiciary abound and are evidence of attempts to concentrate power in the hands of political groups or factions of the administrations of the day, to avoid systems of control of their decisions, or to impose a certain ideological program, or simply to avoid being taxpayers of control against acts of corruption. The weakening of the judiciary, its capture in the hands of a political side or its instrumentalization for ideological-partisan purposes constitutes in fact one of the greatest damages to the democratic political system. The horizontal structure of the judicial organization in the United States represented the great buttress to prevent the request for annulment of the presidential elections in the last contest between the current president Joe Biden and the previous president Trump, the latter being the one who, without any evidence, requested in several States the annulment of the elections for alleged fraud that were dismissed in administrative instances and finally in judicial instances.
On the other hand, the observed examples of attempted political-ideological capture of the judiciary in the case of judicial reform in Poland or Israel are evidence of the problems and risks to which the system of separation of powers and functions is subjected. In the case of Poland, one of the serious problems of the reforms advocated by the Executive concerns the politicization of the National Judicial Council, the body responsible for the appointment and promotion of judges, which generates a serious commitment to both external and internal independence. This was, moreover, one of the criticisms that the European Commission has made of Poland’s justice system. To this is added the existence of disciplinary control mechanisms in the hands of the disciplinary chamber of the Supreme Court that violate the requirements of internal independence.
In the case of Israel, the reform aims to undermine the autonomy and independence of the Supreme Court of Israel, allowing, on the one hand, a majority of the parliament (Knesset) to revoke decisions adopted by the Supreme Court and, on the other hand, incorporating modifications to the composition of the Parliamentary Commission in charge of the appointment of magist.To facilitate the political capture of the system of judicial appointments. In the Latin American experience, attempts at political capture of justice systems abound, with the experience of Venezuela and Nicaragua being the most eloquent in recent years. In the case of Venezuela, judicial independence has been undermined to such an extent that the same United Nations reports hold the justice system and the judiciary specifically responsible for the serious violations of human rights in that country.
Various institutional designs have also made it possible to reduce the autonomy and independence of the courts of justice, generating systems of provisional or transitory appointments that, as the Inter-American Court of Human Rights has pointed out, severely damage the irremovability and genuine independence of judges in the judicial system.
As is evident, the consolidation of a system that respects the independence and impartiality of judges is critical for decisions on judicial organization, functions and governance. The foregoing demands above all an issue that is central: to guarantee a design that gives to each judge, individually considered, the jurisdictional power or power, that is, the power to know and rule, with the sole subjection to the Constitution and the law. In this way, a design that guarantees that jurisdictional power is not concentrated in a judicial body or agency, but in each of the judges who exercise the power to hear and judge, should be preferred or opted for. At the same time, it is necessary to design a system of government that allows administrative, budgetary, management, appointments, removals and disciplinary controls, aligned with logics of efficiency and effectiveness of the functioning of the justice system, without damaging internal and external independence.
A first issue that should be given priority is the separation of different tasks into different bodies. The proposal to reform the Judicial Power, suggested in the constituent process passed by the constitutional convention, handed over most of these tasks and functions to a single organ, damaging with them the mechanisms of checks and balances necessary within each organ or power of the State. On the other hand, that same constituent proposal generated a Council of Justice with members nominated by the political power, generating incentives for the capture of the same organ.
The lessons we can draw from the experiences of the Councils of the Magistracy in Latin America, compiled in several studies by the Justice Studies Center of the Americas, as well as from the continental European experience in matters of governments of the Judiciary, push us to prefer a model that ensures, on the one hand, high doses of external independence; systems of appointment, removal of judges that avoid a concentration of powers in a single organ or power of the State, privileging mechanisms that ensure at the same time high levels of competence, meritocracy, transparency and professional selection. This can be achieved by generating an appointments council located within the Judicial Power, but integrated in a way that avoids the capture or influence of the other branches of the State or the inbred or union capture of the Judicial Power itself. This means looking with special attention at application and selection systems comparable to Senior Public Management that operate as filters prior to appointments by the Council, and that could be adapted to the Judiciary. This Council could be responsible for the appointment, removal and disciplinary control of judges together with training bodies.
On the other hand, it is necessary to separate this Appointments Council from the functions of administration, management and budget, which should be located in another body, preferably collegiate and whose integration is intertwined with external representatives, experts in the areas of administration, management and budget, with representatives of the judges and eventually members appointed by parliament based on criteria of professional and technical excellence.
The separation of the different tasks of the Government of the Judiciary in different entities, recognizes comparative models such as that of Denmark, which can be considered as the basis of a future proposal.
The foregoing implies, of course, eradicating disciplinary, corrective and budgetary powers from the orbit of the Supreme Court’s powers, thus allowing the constitution of the Court as a genuine court of cassation concentrated on jurisdictional tasks. This to your It should once be associated with an integration that privileges a profile of legal experts for the complex tasks of uniformity in the application of the law, which in turn should imply that the appointments are not necessarily associated with people who have completed the judicial career, but with people of recognized prestige and legal knowledge typical of a Court of Cassation.
The set of challenges enunciated has a relevance that requires resolving the main lines of judicial government in the constitutional text itself and not delivering to the law variables so sensitive to the political system. It is, without a doubt, an enormous task and a requirement to be able to bequeath a text that is not only legitimate but cautious with the demands of democracy for Chile.
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The content expressed in this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.
