The Organic Code of the Judicial Function indicates that the delegate of the Council of the Judiciary must direct the body that administratively controls the judges
In the Council of the Judiciary (CJ) there is concern. The workers of the organism talked in the corridors on who will lead the institution after the resignation of María del Carmen Maldonado to the Presidency. Doubts come between of a fight to know if his substitute, Alvaro Roman, remains with the position or the successor will be chosen from a list sent by the National Court of Justice (CNJ).
The main chair is vacant and the office of the Presidency remained closed this Thursday, February 3, 2022. Only the director of the institution, Santiago Penaherrerawas in charge of the administrative and operational matters. But other activities are paralyzed, for example, the convening of plenary meetings to analyze complaints against judges, prosecutors or lawyers. Nor can reports, petitions, trades or official communications be dispatched.
These activities fall specifically on whoever occupies the title of the Judiciary. A charge that entered into a political-legal struggle.
Who can be presidents?
The Council of the Judiciary is made up of five delegates and their respective alternates, who will be elected through lists sent by the heads of the NCJ (his representative will chair the CJ); Prosecutor’s Office, Public Defender’s Office, Presidency and by the National Assembly.
The members will be elected by the Council for Citizen Participation and Social Control, through a public scrutiny process, as indicated by the Constitution in Article 179.
Three requirements to be a counselor
one.- Being Ecuadorian and be in possession of the rights of political participation;
two.- have a law degree recognized in the country;
- Having practiced the profession, I already know how university professor, lawyer, the judiciary, or the judicial servicefor a minimum period of ten years.
Firefighters don’t step on the hose
On July 13, 2011, Art. 258 of the Legislative Function Code was reformed. This was explicitly stated that the delegate of the president of the CNJ must preside over the Council of the Judiciary, a body that precisely exercises administrative control over judges.
The constitutionalist Ismael Quintana qualifies as “excessive” that it be directly ordered who will preside over the body. In his opinion, the ownership of the Judiciary should be left to the decision of the members of the Plenary.
Another lawyer, the constitutionalist Hernan Peralta, do you agree. He pointed out that currently, it can be concluded that there is a “conflict of interests” because the list sent by the President of the Court will necessarily have friends or people you trust. “How independent is the President of the Judiciary going to be when he has to control the conduct of those who put him in office?” he questioned.
Judges almost take over the Judiciary
In 2018, María Rosa Merchán Larrea was a national judge. That year she was part of the CNJ shortlist for the Judiciary Council; while Julio Arrieta presided over the Provincial Court of Pichincha. To avoid conflict of interest, Quintana believes that the new names of a list should be distant from those courts. Both were contested and failed to win the designation.
A decision from the past creates problems in the present
A mine that was planted in 2019 explodes three years later. The then Council for Citizen Participation and Transitory Social Control (Cpccs-t) dropped two of the three names sent by the then president of the CNJ, Paulina Aguirre, to integrate and preside over the Judiciary.
Through a process of discarding, the last one on the list was chosen: María del Carmen Maldonado. But, at that point, there were no more delegates of the Court to designate her substitute. In a move that is now described as “questionable”, the Cpccs-T put the doctor Álvaro Roman in that position, despite the fact that he belonged to the Prosecutor’s Office triplet. So, lawyers like Fausto Estupiñánconstitutionalist, already warned of a problem: What would happen if Maldonado had to resign from office?
In 2022, that bad omen came true. Maldonado left the Presidency on Wednesday, February 2 and a fight broke out. Roman, as his replacement, is waiting to assume the Presidency. Estupiñán pointed out that the decisions of the Cpccs-T were shielded through a resolution of the Constitutional Court and that is the way to go.
The Constitution requires that the President of the CJ be a delegate of the Court
For his part, Quintana considers that the laws and the Constitution are clear. “The President of the Council of the Judiciary must be one of the delegates of the National Court”. He explained that the current Participation Council must require the sending of a list of three to elect Maldonado’s successor. Then, Álvaro Román would exercise the substitution of that position to which he will never be able to access because he is a delegate of the Prosecutor’s Office. “That way, neither the Constitution nor the transitory decisions are breached.”
In fact, the president of the CNJ, Iván Saquicela, already came forward and at a press conference, minutes after Maldonado’s resignation was known, He said that he will send a list with the names of his delegates. At the moment, the profile that the legal professionals will have is unknown. All this happens in the middle of an ad of the Executive to reform Justice and in which one of the points is to limit the functions of the Judiciary.
