On Monday, the Justice System Commission of the Constitutional Convention (CC) approved in general the idea of limiting the duration of the judges’ positions. In the case of the Supreme Court, to a period of 10 to 15 years, according to the initiatives, while, in the case of the Court of Appeals and judges of first instance, the period would drop to 8 years, with re-election. A day later, the ministers of the highest court in the country issued a statement in which they assured that “in the regulation of the jurisdictional function it has been expressed that the independence of the judges of instance integrates the principle of immovability”.
“Establishing limited periods of time for their performance not only contradicts international recommendations, but also puts at risk a fundamental element of any democratic society, such as having independent judges, and therefore irremovable until retirement age, as long as they maintain good behavior, so that they are not even theoretically subject to pressure from power groups of any kind, on whom their future employment or professional life could depend,” the statement said.
The constituent Mauricio Daza, who is part of the Justice System Commission, explained that the proposal “does not affect the immobility or independence of the judges”, but essentially establishes that the reappointments to the positions must be carried out through a contest. public, carried out by a technical and autonomous body with constitutional status, which would be the Supreme Council of Justice.
In this context, former Supreme Court ministers supported the current members of the highest court, including former minister Patricio Valdés, who in an interview with The counter He delved into the effects that –in his opinion– advancing this measure could have, highlighting that there are suspension and dismissal mechanisms if a certain magistrate does not carry out his work in an adequate manner. In his vision, what is sought is to eliminate the Judiciary as a State Power and reduce it to a service. Regarding the creation of community courts, he said that it is reviewable and that in Chile there have been courts with this type of jurisdiction.
-On Monday the Justice System Commission of the Convention approved to discuss the duration.
-The Judiciary, as a state power, which I believe has been discussed at this time in the Convention, and they have tried to practically eliminate it and turn it into a justice service.
What happens is that the basic pillar of the Judiciary is its independence and, for this, the irremovability of the judges is needed. What does this mean? It means that a judge who is elected at a given time – we can discuss what the election system they have – must be immovable, as long as they maintain the proper conduct as such, because the laws will always establish when a judge can be sanctioned or removed. of their position, but it cannot be that it is established for a certain period of time and that after that they have to compete again. That ends, in my opinion, with the independence of the judges, because they are going to have to be aware of what is happening in the rest of society to see how they are going to have to resolve certain issues in a given case.
The problem is that, once the judge is elected, he must be irremovable until retirement age, as long as he fulfills his functions adequately. What if the judge wants to stay in office? They appointed him a Judge of Letters, for example, in a commune or group of communes, in a place in the north. If he wants to be there for his entire career, let him be there for his entire career.
What is intended is absolutely inadequate. I do not want to offend anyone, but there is a very important lack of knowledge, except for some conventional ones who are the ones who really know the matter.
When talking about the Council of the Judiciary, the matter gives me a little resentment. As president of the Electoral Qualifying Court, I had to travel a lot and I saw how in all the countries they said “you’re lucky you don’t have a Council of the Magistrature, because the politicians are always involved.” Even the same thing happens in Spain and I also had to see it in Portugal, once we were invited by the Supreme Court of that country.
-And what did you think of the accusations of interference made by some constituents?
– I believe that there is no interference in that. What the Supreme Court is defending, the core of what it defended in the declaration, is the independence of the Judiciary, through the tenure of judges. That’s it.
-And speaking strictly of the Supreme Court, do you think that the passage of ministers for that position should be limited?
-In the Supreme Court, I have always maintained it, that the ministers must have a determined duration, which in my opinion should be 10 years, with retirement once they leave the Judiciary, at the age of 75. But in order not to have a person who entered very young and has to leave at 10 years old, I would put a minimum age, which I also think is an appropriate age, based on experience, which should be between 60 and 65. And if One is elected at 70, he will be until 75. If he is elected at 60, he will be until 70.
That is important to give, in simple terms, chimney draft, because if people stay for many years inside the highest court, those who come from below, as this is pyramidal, find it harder to climb.
-Another of the things that is sought is to end the hierarchy of judges. Constituents say they want to match the judges of the Supreme Court, of the Court of Appeals. How do you see the above?
-That in words is very easy to say, but to do it is very difficult. Because when someone is hierarchical superior, they impose criteria. For example, when a judge of Letters rules in a certain way and the Court of Appeals revokes that decision, he is imposing his will on him, and that is already hierarchy.
You can tell me that there are management problems, qualification problems, and many things can be discussed about it. I believe that the judges, and I am telling you a matter of a personal nature… when I was a minister of the Supreme Court, I was in charge of rebuilding all the courts after the earthquake and the best thing that was done , and no one said how badly they did it. But all that can be seen, what are the functions.
-There are several proposals in the commission that are or will be under discussion, and one is that it is not a requirement for a judge of the Supreme Court to have passed before the Court of Appeals. Do you see it in a good way?
-I became a minister of the Supreme Court and was a member of the Court of Appeals for two or three years, no more, and I was external. There you have an exception. That can be discussed. I think it’s good that there are people from outside, who bring the knowledge… at one point, I changed from the side of the counter, because at one point I was a lawyer who practiced the profession, so I knew a lot of things.
So, I believe that we were or that we are a contribution to the Judiciary and that shows that a person who is not from the ranks can become a minister of the Supreme Court, obviously fulfilling certain requirements. I was at the University of Chile for 42 years, I was a professor at the Police School for 22 years, a university professor. I spent 30 years in the National Customs Board. Some requirements must be met, but it would also be unfair if the Supreme Court could always be filled with judges from outside, because that cuts the heads of those who come from below, who have every right to be ministers of that Court.
-What points do you think would be important to discuss in the Justice System Commission to incorporate into the new Constitution?
-I would have to see what structure they want to give it. Constitutions should be quite concise. It is much easier to modify the law than the Constitution. The Constitution is not given for washing and scrubbing. You think that the Constitution of 1925, the first time it was modified was the year 43. The second time was the year 59, twice. Then came the modification for the agrarian reform, and from then on the constitutions have had a way of modifying them that I cannot imagine. The Constitution is a very important thing to be changing every day.
-There is a proposal that speaks of community courts of justice to resolve neighborhood, community issues…
-Remember that in the old days there were sub-delegation and district judges, the Courts of First Instance for Indians, the Food Courts, and not so long ago. This thing that there are different courts with different powers, we should see it, we should see the detail.
