9TH NATIONAL INTER-COLLEGE CONFERENCE ON CONSTITUTIONAL

LAW

[IX JORNADAS NACIONALES INTERUNIVERSITARIAS DE
DERECHO CONSTITUCIONAL]

UNIVERSIDAD NACIONAL DE MAR DEL PLATA
LAW SCHOOL
MAY 16-18, 2013

Discussion panel: The Judiciary: current issues regarding its independence

Chairman: Alberto Spota (h) (Universidad de Buenos Aires) [Buenos Aires
University]

Paper title: Analysis of the reform of the Judges Appointment Board [Consejo
de la Magistratura] vis-à-vis the Pure Theory of Law and the philosophical
definitions of Justice. Its relationship with the form of government.

Author: Adrián Martín Rois

College: UNMDP – IUOGA

Email: roisjus@gmail.com
The Argentine Judiciary’s independence has been put at stake by a law

package known as “democratization of justice”.

Some of the draft bills involved present major unconstitutional aspects.

The reform of the Judges Appointment Board [Consejo de la Magistratura] will be

analyzed in connection with the subject discussed today: the Judiciary's independence.

The reform sought adversely affects the republican form of government by annihilating

the independence of the Judiciary. Unconstitutionality is found in several specific

points, namely:

1) breakage of the balance set forth by Section 114 of the Argentine

Constitution, which translates into a distortion of the republican form of government; as

a result, the laws at issue alter the form of government of our state, which would no

longer be a republic;

2) delegation of extraordinary powers to the Executive, an act which is

prohibited by Section 29 of the Argentine Constitution;

3) detriment to individual guarantees such as defense at trial and due process

before an impartial court and;

4) violation of the International Covenant on Civil and Political Rights.

Justice will become the convenience of the strongest, as posed by

theories developed well before Christ regarding the crucial significance of the definition

of Justice, depending on who administers Justice, which is also an essential element to

distinguish between a democratic or monarchic form of government.

I believe it is absolutely necessary to give special treatment to the

determination of the persons who administer justice, for this, in turn, specifically and

directly determines and affects a state’s form of government during its lifetime.
This law package has been wrongly named “democratization”. This name

is not suitable to denominate the laws involved, as it is completely misleading. The

reform sought does not go deeper into democracy. The system will not be perfected by

electing judges by popular vote, since it is a mistake to hold that “the higher the quantity

of democracy, the more democracy”. We should rather say "the higher the quality of

democracy, the more democracy”. And quality is given by the independence of the

government branches. Branches keep the balance, the weight and counterweight system,

in order to prevent a ruling political force from controlling the three of them; otherwise,

our government would become a sort of monarchy in which the ruler can never make a

mistake. If there were no control and true independence among the government

branches, none of them would have actual powers to question any act by the other, and,

therefore, the decision of the powerful would always be approved by the other two

branches. The Executive already takes part in the legislative, as political majorities

obtained in the elections translate into control of legislation. Now, if the Executive and

the Legislative infiltrate into the Judiciary through their representatives, specifically

before the board which appoints the judges who make final decisions regarding

essential state and the constitutionality of Congress' laws –which, as I noted before, is

already controlled by the Executive– the situation would have no gaps, and the republic

form of government would be distorted.

The reform to the Judges Appointment Board, as submitted by Congress

–even with the tiny amendments by the House of Representatives– directly affects the

Judiciary’s independence by destroying its nature; it would lack autonomy in its

decisions and become just another political power, an agency of the Executive,

answering to the latter's interests. This does not mean there will be no justice; we will

have justice, but it will be the justice questioned by Plato, who in a dialogue in The
Republic asked Thrasymachus to explain what justice was in those terms other than

what was necessary, profitable, useful or advantageous …. or convenient to the

strongest.

To prevent Justice from turning into the convenience of the strongest, we

must maintain a completely independent Judiciary. This is why the judge who

administers justice must be a poor in spirit in the Biblical sense; a scientific of law and

not a politicized person. It is not because politics is bad but because Justice should

remain foreign to the State's executive's sphere and thus support and ensure the

established regime, which should be democratic and not absolutist.

Note that the receiver of the pre-judicial thought –i.e. the legislator– is

also already a politician, because in order to receive such thought, the legislator must be

a political action person, who reads the needs of people and take them to Congress

aiming at enacting laws that address those needs. There is no doubt that Congressmen

are politicians.

Thus, in the first place, we have politicians in the Legislative, who are in

charge of receiving society's needs and address them by enacting the appropriate laws;

secondly, we have politicians in the Executive, who represent and rule the country and

make executive decisions, which, in turn, may be done to a larger extent through laws

if, as I said before, they have a majority in Congress; on the other hand, the Executive

also rules within the sphere of its own acts and executive orders, until their party obtains

the relevant support to rule through the Legislative. Third, we finally have the Judiciary,

law science and judges, which are outside these political realms and interests.

It is important to focus on the fact that the Judiciary should always

remain outside the relationship between the Executive and the Legislative, which

relationship shall be more or less closer depending on the votes obtained at general
elections. This variable –votes– should not play any role in the Judiciary, for, otherwise,

the system would be cohesive: three homogeneous government branches, an absolutist

regime, in which the party which obtains a majority controls all three branches. This

would be tragic; democracy would be distorted and become nothing but a front. Let us

think about the following: Election Law is within the sphere of Judiciary, but if election

disputes were to be resolved by a Judiciary which is allied with the government, who

can ensure electoral justice? This is just one of many other examples.

Where large majorities prevail, the Judiciary is there to ensure

constitutionality, for, ultimately, although a political party may obtain a significant

majority of votes, and, therefore, have a majority in both houses of Congress, there will

always be a Judiciary independent from political spheres, which will control and ban

laws which impair the substance of constitutionalism, a regime that constitutes the basic

structure of the State by dividing it into three branches in order to rationalize political

power. At this point, it is also worthwhile stressing that the Argentine Constitution is

among those which involve “covert ideology” and, as it has been acknowledged by the

Supreme Court (rulings 179:113), it has been incorporated into a liberal and

individualist bill.1 Therefore, we should construe individual’s freedom as an essential

democratic value, which would be precisely hampered by the reform sought, for it is

clear that there can be no freedom without fair courts.

According to our Constitution, the elected administration has 4 years to

act freely. Justice can never restrict the Executive, provided its acts are not inconsistent

with the Constitution. And if such administration desires to amend the Constitution, that

is also possible; amendment commissions must be held and approve such amendment

with an appropriate majority. However, this judicial reform cannot be made without

1
Sagués Nestor. Elementos de Derecho Constitucional. Argentina, 2001. Pub. Astrea, 3rd, Vol. 1, p. 96.
first amending the Constitution, for it alters its very essence. It would be necessary to

amend the Constitution and restate several sections thereof, such as Sections 1, 29, 114,

and many other more in order to change our Constitution’s "covert ideology”, or else

make an amendment that will include an express ideology, clearly stating the form of

government sought. This would result in clear game rules, which would allow people to

choose whether to live under a republican democracy or a different form of government.

For example, the Preamble of the 1977 Soviet Union Constitution provides that the

supreme goal of the Soviet state is to build a classless communist society; and the 1964

United Arab Republic Constitution defines the State as "social-democratic". These are

cases of express ideology.

In the case under analysis, i.e. the Judiciary's independence vis-à-vis the

amendment of Argentine Act No. 24.937, it is my opinion that such independence is

impaired by the interference of the Executive political bodies in the Judiciary, and that

the amendment, in addition to being contrary to the Constitution, its covert ideology and

the established form of government, is inconsistent with the Pure Theory of Law.

Thus, the Judiciary's independence would completely disappear, and the

Judiciary would become a branch controlled by the powerful of the moment.

Let us analyze the draft bill: firstly, the increase in the number of

members has not taken into consideration the balance required by Section 114 of the

National Constitution (already impaired by Law 2006 which has been deemed to

unconstitutionally make the political sector overabundant) as, far from being balanced,

the proportion is 7 of the 13 members. In order to strengthen democracy the opposite

direction should be taken, i.e. the judicial reform should be accompanied by

depoliticization. There is clearly a serious problem in the interpretation of the

Constitution, the form of government and, as we will see later, a disregard of the very
"Pure Theory of Law". The name of “democratization” is misleading, which becomes

clear upon carefully analyzing the bill and the proposed majorities of the Board that will

be in charge of appointing magistrates to the Argentine Federal Supreme Court.

The above does not mean that the rest of the amendment bills are not

worthy or that the Judiciary does not require adaptation to current times.

Let us analyze the following statement “The bill to amend the Judges

Appointment Board combines both the new method to appoint sectors’ representatives,

and a change in majority requirements. As to the first aspect, I believe it is essential to

bear in mind that the Judges Appointment Board will not replace the role that the

Executive and the Legislative already play and have played even before the 1994

amendment. The Executive nominates and the Senate gives its consent; clearly, the most

important tasks are in charge of people organization's representatives. This is a

manifest violation of the wording and the spirit of Section 114 of the Argentine

Constitution which provides that the appointment of magistrates', lawyers', and

technical and science sectors’ representatives should be in charge of these sectors,

which were included with a controversial purpose –analyzed at the time the Constituent

Assembly addressed the issue of preclusion of political influence from all questions

related to the appointment and removal of magistrates. To make things worse, this is the

result of the people's vote at general elections, where political executive officers are

elected through a blanket list. This list includes a section that, under the umbrella of a

political party will represent such officers, who are completely subject to the

Executive's will, that is the ruling party at the moment. Thus, we are in the face of a

CAPTURE of the JUDICIARY.

If we add to this picture that the majority to file charges and submit the

nomination of the three candidates for approval was reduced from two thirds to an
absolute majority, the system rounds up, i.e., the political party obtaining a majority at

the elections will control the other two branches. This completely disregards the

separation of powers theory, which should be preserved under all circumstances.”

(Sabsay 2013)2 In line with the opinion of Mr. Sabsay, I must say that today, the

Legislative is no longer independent, for, as you may note, since the inception of the

current administration not a single bill submitted by the opposition has been enacted,

and not a single act of the Executive has been voted against. Here lies the importance of

the Judiciary as an invaluable balancing power under the powers separation theory,

which determines the republican form of government.

All the foregoing poses one of the major issues of the Rule of Law: the

independence of the Judiciary.

The main unconstitutional aspect of the reform is the interference of

politics in the decision of legal disputes, which affects the republican form of

government and violates Sections 114 and 29 of the Argentine Constitution, in

principle, and subsequently translates into the violation of individual guarantees.

However, as I stated before, this fact and the impairment of the Judiciary's

independence needs to be proved. Firstly, we have the judge’s ideology, which, in itself,

distorts quality and fairness in justice administration; secondly, judges’ duty to

objectively consider the facts brought before them for their resolution is conditioned by

the fact that magistrates may be removed by a circumstantial majority. Therefore,

judges will not only be influenced by political commitments but will also be pressured

by the underlying possibility of being removed by the ruling party majority, if he or she

fails to rule as required by the Executive. This will result in rulings based on the

convenience of the political power. The rulings of a political Court will involve the

2
Sabsay D. (2013) “Reforma al Poder Judicial” Lecturer at the Jornadas de debate sobre la reforma
judicial (Conference on the judicial reform) . Law School, University of Buenos Aires April 22, 2013.
construction of laws according to the convenience of the powerful, for judges will be

conditioned by it. This is also why Kelsen sets aside law science to keep it pure and

detached from any other science as may distort it. I will expand on this question later,

but it is important to bear it in mind, for these issues should not be treated outside law

science environments.

It is necessary to underline that these questions of law, such as the

manner in which the Argentine Constitution should be construed, may not be submitted

to the decision of Congress and its conclusions. Along these lines, Sabsay further stated

that: “the true constitutional debate cannot be voted at Congress. We already know this,

but there have always been doubts about the legitimacy of this issue: the so-called

“Counter-majoritarian” theories (Jürgen Habermas, Frank Michelman); the

appropriate environment to discuss the meaning of a constitution is judicial debate,.”3

Now, what is the people's way out when the Legislative fails to reckon the pre-juridical

thought and, on the other hand, passes an unconstitutional act? The solution lies in the

many tools provided by the judicial control of constitutionality to enforce the

Constitution and the people’s rights.

The concept of Judges Appointment Boards has always involved a

balance among the three large sectors composing it, namely, judges, lawyers and

scientists; however, differences already arose in the first Board. On the other hand,

legislators composing the Board appointed themselves and did not elect representatives,

but, what is even more serious, is that the Executive appointed members despite the

constitutional prohibition to interfere with the Judiciary. These were the first cases of

minimum interference; currently, interference and breakage of balance has gone to the

3
Sabsay D. (2013) Ibid.
extreme of not only continuing with the said distortion but also of causing the

destruction of the Judiciary through the full interference of the political power.

It establishes a monarchic form of government, in which, of course, the

Judiciary is not independent form the President. In past times, the sovereign was the

king by order of the Divinity; nowadays, the sovereign is the people, through their

representatives and their mandates. For such sovereign to have a controlled power and

avoid recurring in historical despotisms (all discussions regarding the statement that the

Executive may not control the Judiciary have been overcome) its power must be

protected by independent bodies, which is nothing but the theory of separation of

powers. This, which seems so obvious and irrefutable, is now being questioned.

Aristotle said: “Demagogues emerge where law has lost sovereignty. People then

become a true and sole monarch, composed by a majority which rules, not in an

isolated fashion, but as a multitude … As soon as people become the monarch, the force

of law is impaired and turns despotic; thereafter, people’s flatterers become very

successful. In both cases we find the same flaws, the same oppression, in one as a result

of people's decisions, and in the other as a result of arbitrary decisions. In addition, the

demagogue and the tyrant are manifestly similar. Both have unlimited credit: the one as

result of fear, the other as a result of a corrupt people.”4

Asserting this theory of inclusion of politicians in the Judiciary leads to

the following questions: What is justice? If judges are political representatives, is it

possible that they will only find fair what is convenient to the powerful? These

questions arise from the philosophical creation of Plato’s The Republic, which analyzes

4
Aristóteles Obras Selectas, Política. Libro SEXTO. De la democracia y de la oligarquía. De los tres
poderes: legislativo, ejecutivo y judicial. Capítulo IV: Especies de democracia ( Aristotle´s Selected
Works, Polítics. Book 6: Democracy and Oligarchy. The three branches: legislative, executive and
judicial. Chapter IV: Forms of democracy) Translated by Samonta. Argentina, 2003; Publ. Distal, p. 154.
and discusses whether justice is the convenience of the strongest. We have to think how

to solve this problem.

The constitutional system arose as a response to abuses by monarchies.

Let us think how the world was at the times of monarchies: unfairness, abuses of

power... however, the king claimed that his decisions were in the general interest;

everything was justified. This is why Plato, in the theory of the perfect republic had

already correctly analyze justice and warned that it should never be that which is

advantageous for the strongest, as, therefore, fairness would be that which is convenient

to the powerful and his pals. This should never be permitted.

One of the constitutionality principles is separation of powers.

Interference of any of them with any of each other can only be to the detriment of the

constitutional system. Impairment of judicial impartiality as a result of political

intervention causes serious problems for the general control of society and hampers the

opposition's control duty. It is worthwhile mentioning certain dialogue in Plato’s The

Republic: “the fair one will be useless to those who do not fight". While this assertion is

followed by the reply “I do not fully agree with this”5, it is my opinion that, while the

fair one is useful to everybody, he who fights is the one most in need of the fair one, of

justice, in order to be protected and able to control the acts of the ruler. Let us

understand the opposition as those who fight the ruling party in the game of powers and

representation. Society ultimately needs the fair one to combat distortion of the form of

government, of the game rules and upon injustices. Therefore, the fair one is mostly

needed by those who fight, in the terms explained. And in the light of the fact that the

fair one has the potential capacity to benefit friends and damage foes in wars and

combats, it is necessary that the fair one, i.e. he who administers justice, be always

5
Plato. La República. Libro Primero: Análisis de la Justicia. (The Republic. Book 1: Analysis of Justice)
Argentina, 2009. Ed. Libertador, p. 20.
outside the combat and the political game. Along the lines of this argument, it is

mandatory to prevent Justice from becoming a sort of leave to the Executive in the case

of violations reported by those who, in their capacity of opposition members, have the

duty to exercise control.

Already since ancient times we have been warned about the potential

consequences of a poor administration of Justice and of the use of Justice for the

convenience of the strongest. Thrasymachus states in a dialogue:

“-Do you know –he asked- that some cities are ruled by a tyranny, some by a

democracy and some by an aristocracy?

- Of course!

- And that what is strongest in each city is the ruling element?

-Certainly

-And each type of rule makes laws that are advantageous for it: democracy makes

democratic ones; tyranny, tyrannical ones; and aristocracy, aristocratic ones. And by

so legislating each declares that which is just for its subjects is what is advantageous

for itself, and punishes everyone that deviates from this as lawless and unjust. That, my

good friend is why I say justice is the same in all cities: what is advantageous for the

established rule. And this is, I believe, the one who has the power...”6

To avoid this situation, so well described in Plato's dialogue, we must

apply Kelsen's Pure Theory of Law, which “by being qualified as a pure theory it is

deemed to entail the creation of a science whose sole purpose is law, without regard to

anything which fails to strictly abide by Kelsen’s definition. The main principle of this

method is, thus, to remove from law science any foreign element.”7 Kelsen separates

law from other sciences, among which he gives great importance to politics; this

6
Plato. Ibid., p. 28.
7
Kelsen H. Teoría Pura del Derecho. Translated by Moisés Nilve. Argentina, 1994. Publ. Universitaria
de Buenos Aires, p. 15.
detachment is aimed at achieving the objectivity and accuracy any science calls for,

which are otherwise impossible to achieve. Thus, in my opinion, the judicial reform is

inconsistent with Kelsen's Pure Theory of Law, as it annihilates the objectivity and

accuracy of Justice and, of course, its purity. To support this assertion it suffices to

simply read the preamble of the 1934 German edition of Kelsen’s Pure Theory of Law,

where Kelsen replies to those who seek to jeopardize such perfection by causing the

political power to undermine Justice: “Actually, the conflict is not about the position of

law with respect to other sciences and the resulting consequences, but rather about the

relationships between law and politics. My opponents do not admit that this two

domains are completely separated from each other, as they do not want to give up the

well-rooted habit of claiming the objective authority of law science to justify political

demands of a clearly subjective nature, even if in full good faith they correspond to the

ideal of a religion, a nation or a class.”8. If we understand the Pure Theory of Law as

this detachment and as the basis of democratic constitutional systems in which

separation of powers is the cornerstone of government control, we will find that the

reform of the Judges Appointment Board is inconsistent with several aspects of this

theory, as it precludes the detachment of law from politics. This was already held by

Kelsen when he stated that separation of legal science and politics, as provided for in

the pure theory, naturally has political consequences, even if only negative.

In order to find the niche of unconstitutionality and understand the bases

of my statements, we will see in practice the direct and immediate nexus between both

sciences, as a result of which I believe that the reform impairs the Judiciary's

independence and, as a consequence, is unconstitutional and inconsistent with the

system set forth therein, namely, the republican form of government established in

8
Kelsen H. Ibid P. 11
Section 1 of the Argentine Constitution. Finally, the reform ends up impairing

individual guarantees, due process and freedom, which are implied cornerstones of our

Constitution. Under the rule of law sought, citizens shall no longer be free and judges

will rule on the basis of equal conditions, without freedom of conscience, and

conditioned by the fact that he or she may be removed by those who “placed” him or

her there, should a resolution be issued against their interests. It will similarly affect

citizens, who will live in fear because such judge will not be able to rule in their favor if

the relevant case involves the interest of the strongest, the powerful of the moment, for

the judge will not rule against the powerful's interest, even if a citizen deserves power or

justice administration in his or her favor.

Pursuant to Act No. 24,937, as partially amended by Act No. 26,080, the

Judges Appointment Board is currently composed of 13 members, namely:

- 3 Federal Judges elected under the D´hondt system (all are impartial)

- 6 Legislators: 3 from the House of Representatives and 3 from the Senate. Out of these

bodies' legislators, 2 belong to the majority block and 1 to the first minority (4 ruling

partisans)

- 2 representatives of the federal Bar, elected by a majority of the Bar members (all

impartial)

- 1 representative of the Executive (1 ruling partisan)

- 1 representative of the academic and scientific realm (1 impartial)

Let us analyze: how many members does the ruling party have in the Judges

Appointment Board? It has 2 of its Senate’s representatives, 2 congressmen of its House

of Representatives, and its Executive's representative. Therefore, it has 5 of the 13

members.
On the other hand, 7 of the total 13 members may be said to represent

political bodies, but only 5 may belong to the ruling party. They do not have a majority

in the Board, so to say, in compliance with Section 114 of the Argentine Constitution,

which calls for balance (without regard to discussions about whether balance relates to

the determination of the sectors to which members belong, or the number of members

elected by people's vote or elected within the Judiciary). In my opinion, there is no

doubt that balance relates to the representation of sectors.

Section 114 of the Argentine Constitution provides “The Judges

Appointment Board shall be periodically constituted so as to achieve a balance among

the representation of the political bodies arising from popular election, of the judges of

all instances, and of the lawyers with federal registration. It shall likewise be composed

of such other scholars and scientists as indicated by law in number and form.”

Thus, we may see that the current system provides for an appropriate

political representation structure, as it meets, although in the limit, the required balance.

There is no political majority to make authoritative decisions if an agreement were

reached. Notwithstanding the above, the Judges Appointment Board is already

politicized pursuant to the 2006 amendment.

Let us now see the composition if the amendment of Act No. 24,937

were enacted. The Judges Appointment Board would be composed of 19 members,

namely:9

- 3 Federal Judges, elected by universal suffrage; 2 from the party winning by a simple

majority and 1 from the first minority (2 ruling partisans)

- 3 representatives of the federal Bar members, elected by universal suffrage; 2 from the

party winning by a simple majority and 1 from the first minority (2 ruling partisans)

9
Structure under the Executive Bill of Amendment of Act 24, 937 of Creation of the Judges Appointment
Board (P.E. -5/13)
- 6 representatives of the academic and scientific realm, elected by universal suffrage; 4

from the party winning by a simple majority and 2 from the first minority (4 ruling

partisans)

- 6 Legislators: 3 from the House of Representatives and 3 from the Senate. Out of these

bodies’ legislators, 2 belong to the party winning by a simple majority and 1 to the first

minority (4 ruling partisans)

- 1 Representative of the Executive (1 ruling partisan)

All the 19 members of the Board represent political bodies (the Judiciary

will be 100% politicized). So far, the balance required by the Federal Constitution

regarding sectors is already impaired, except as stated in connection with the above

considerations as to the meaning of "balance", as used in Section 114 of the

Constitution, and irrespectively of my previous statements on the Theory that holds that

politics should not interfere with law science. Then there is the question of partiality,

which is even worse, as 13 of the 19 members will belong to the majority party, i.e., the

ruling party, and thus will have an absolute majority in the Judges Appointment Board.

So, I repeat, there will be 13 out of 19 members who will represent the ruling party in

the Judiciary, thus achieving and even exceeding an absolute majority and constituting a

valid quorum with their mere presence, and, in consequence, violating the provisions of

Section 114 of the Federal Constitution. Even more serious is political interference,

which is a patent violation of the republican form of government set forth in Section 1

thereof, and is inconsistent with the Pure Law Theory. This will result in an absolute

lack of impartiality in judicial rulings, which, in turn, violates the fundamental right to

legitimate defense, which involves due respect for a constitutional and impartial

process. From a different standpoint, the new act would infringe international

agreements, specifically the International Covenant on Civil and Political Rights, and
more precisely section 14 thereof –among others– which provides that “states agree to

establish competent, independent and impartial courts.” Finally, by destroying the

Judiciary's independence, the reform impairs national legal certainty in our government

system and our nation.

Please note that if we have 19 members elected by popular vote, 13 out

of which belong to the majority party, the balance is being impaired, however the term

“balance” is construed. Therefore, following the reform, the political party obtaining a

majority of votes at the elections will have a majority of the members of the Judges

Appointment Board and, as a result, of the Federal Supreme Court judges. Those judges

will no longer act with independence and freedom of conscience, as they will answer to

political interests. Thus, the Judiciary will function exactly as the Legislative, where

votes answer more to political directions than to objective and specific grounds. I wish

to stress once more that the Judiciary is a superior science –detached from all elements

that may distort it or affect its purity– that came into scene to avoid any abuses by these

majorities.

In order to administer justice, we have established courts composed of

judges who may not be connected to, or influenced by, the political power, for politics

is a foreign science. Judges should administer justice with equity, without answering to

the strongest’s interests. This is another aspect of justice, whose purpose is, among

others, to preclude a Government from exercising full control, draft laws according to

its convenience, or enforce laws that are inconsistent with the Constitution or covertly

involve a change in the form of government elected by the people at the time of

adopting their Constitution. Therefore, in order to prevent that in each city fairness be

what is convenient to the established Government, the constitutional system makes the

Judiciary independent, keeping judges impartial, which is only possible if they are
completely detached from political interests. These are the bases of a democratic and

republican government, which, deriving from historical experiences, are aimed at

preventing abuse of power by leaders, especially charismatic leaders. Judges who

administer justice must be independent. Should justice become controlled by the

strongest, i.e. the established government, then the situation would be consistent with

Thrasymachus statement, i.e. that fairness is what we have already said: the convenience

of the strongest, who would use it on the grounds that fairness is “to do favor to friends

and damage to foes”. On the contrary, democratic societies, by being organized through

the separation of powers, precisely thanks to the Judiciary, vest the administration of

justice in persons outside the Executive and the political power –the power of the

moment–, thus precluding Justice from becoming a means to do favors to friends and

damage to foes. It is not within the scope of my speech to further expand on the

consequences of the implementation of such a judicial system; however, it is necessary

to stress that if politics continue to interfere with Justice, we would face a situation of

implied and latent impunity of the Executive members should it be necessary to charge

them with any offense, for no prosecuting attorney answering to the Executive’s

interests would investigate their potential abuses or offenses and, likewise, no judge

would rule against their interests, which, in turn, are his or her very same political

interests.

The new Judges Appointment Board would repeat the current hyper-

presidential Argentine model, which strongly builds up the Executive’s powers.

It is also worthwhile highlighting the question related to the debate

instance. The constitutional debate is being blocked, and the ruling party's debate

parody in Congress, which is the manner in which the issue is discussed, is inconsistent

with the Constitution.
Following Gargarella, 201310 statements regarding judicial control, even

on a limited basis, strong and active control should be exercised over the

implementation of procedures, the game rules; therefore, while wide scope should be

given to the executive functions of politics (i.e. if the Government wishes to go from a

more privatist to a more interventionist policy, it must have and needs plenty of room

for maneuver), any measure in connection with game rules should be carefully

monitored. This is not to say that the political power may not make or propose changes

in game rules, but simply that any such change calls for special and close attention.

Where a Government decrees laws in its own will that change the democratic game

rules, there is a presumption of unconstitutionality. Finally, whether ample or restricted

judicial control theories or concepts are applied, the results of the analysis will always

be the same.

Unlike the reform proposed, we need a reform that will provide improved

access to Justice, an issue that has been used as defensive shield in favor of the reform

proposed but which has in no way been regulated by the bill packages. Actually, the

packages under the democratization umbrella will cause destruction of the Judiciary's

independence for the benefit of the ruling power of the moment, which will control it.

Even if these consequences were not the grounds for the reform, the door remains open

and, may not, for that reason alone, be permitted, as it leaves the door open for future

impunity. I am not saying such power will actually be used by the current

administration, but I am thinking of any future administrations.

If the reform would entail an increased number of voices but leave no

room for presumption of an interference attempt, the Judiciary would give it "Green

Light".

10
Gargarella R. (2013) in “Reforma al Poder Judicial” obcit.
According to Spada, the whole issue lies in the difficulty involved in self-

regulation of power as a limit to its inherent expansive nature, wherefore such limit

should come from another power strong enough to restrain it by balancing forces.

Romans, the ancestors of our legal system, did not fear power, but did fear abuse of

power. They then devised a strong weight and counterweight system to control it.

Courts were multimember, which ensured horizontal control. However, in provision of

magistrates reaching an agreement and exceeding their powers, Romans created a

hierarchical structure in which higher magistrates controlled lower magistrates, and thus

attained a vertical control. But as magistrates could also make arrangements, a body was

created above all instances which was so extraordinary as to be qualified by Ortega y

Gasset as "brilliant irrationality": the plebeian tribune –established in 494 B.C. as a

plebeian counter power of the patrician power of Consuls– whose duty was to represent

and protect plebeians (the people) against any arbitrary ruling by magistrates.

At the beginning of the 18th century, the prevailing political system in Europe was the

monarchic absolutism resulting from the strengthening of the royal power as from the

end of the Early Middle Ages. The king’s power prevailed over the law and was not

subject to any control whatsoever. History witnessed the long road that had to be

travelled until Sovereign power was given to the sole and original holder of sovereignty:

the people. Thus, in the Modern Ages another brilliant concept there appeared in the

political realm: the theory of separation of powers/functions, coined in the works of

“The Spirit of the Laws”, which was inspired by classical treatise authors’ specific

descriptions of the political system of the Roman Republic –in addition to Plato's and

Aristotle's theories – and by the contemporary political experience of the 17th century

English Revolution.
To achieve balance, the separation of powers requires a check and

balance system represented by several rules of procedure that allow one of the powers to

restrict another power. Each country applying the separation of powers needs to have its

own check and balance method. Now, the natural question is: Is the Judiciary exempt

from control? Not at all. Its control is ensured by a procedural system that provides for

at least two instances that act as a brake to restrict arbitrariness. In addition, judges are

appointed to, and removed from, their offices through a control mechanism

(impeachment –Judges Appointment Board) with the participation of all stakeholders.

This is the basic issue: power should be controlled in a balanced way so

that the system is coherent and complete. One of the most serious flaws of the proposed

reform is that it impairs the control system, the Judiciary's independence Actually, if the

Judges Appointment Board in charge of the appointment and removal of judges were

controlled by a simple majority of the political power, the Judiciary would control the

Executive and the Legislative, but then these powers would absolutely control the

Judiciary, vesting the political power with unlimited control.11

11
Dario German Spada is a tenured lecturer of Administrative Law Elements at the University of Buenos
Aires who has reflected on the basis of "El Círculo Vicioso: quis custodiet custodes?" (the Vicious Circle:
who controls controllers?), following lecturer Luis Aníbal Maggio, doctor in philosophy of law.

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