judicial independence

When analyzing whether there is an upright Rule of Law in a country, it is necessary to go beyond simple compliance with the laws and the absence of impunity in the commission of crimes. In order to affirm that the Rule of Law exists, in addition to the fact that the State must be the guarantor of natural rights (free expression and manifestation of ideas, freedom of religious belief, freedom of association, etc.), four conditions must be met.

First, private property rights have to be efficiently defined in the legal framework, mainly at the constitutional level. These include the right to own property, the right to use it as the owner sees fit while respecting the rights of third parties, and the right to transfer it to a third party in a wholly voluntary transaction.

Second, equality of access opportunities to all markets, goods, services and factors of production must prevail, that is, markets must operate in a context of competition. This implies having a regulatory framework with low entry and exit barriers to the markets, with the role of the State prosecuting and penalizing any monopolistic practice, be it governmental or private.

Third, the government cannot interfere in the private sphere if it is not to enforce the laws, which implies that it cannot be involved in decisions that concern only individuals, such as what goods to consume (including those that could cause harm), the freedom of women to decide about their bodies and their maternity, the conformation of families (heterosexual or homosexual couples) and the freedom to choose a dignified death. All these are decisions that are made under the principles of freedom of choice and the inviolability of private property rights.

Fourth, an upright Rule of Law requires the existence of an independent, impartial, efficient and expeditious judiciary that guarantees and protects natural rights and private property rights against acts of third parties that violate them, including acts of government as well. how to guarantee compliance with contracts between individuals and between them and the government.

In order for the judiciary to efficiently and expeditiously fulfill the functions indicated in the previous paragraph, it is clear that the institutional arrangement that governs this State power must guarantee that the ministers of the Supreme Court of Justice, the magistrates and the judges are effectively independent of the other two branches of the State, the executive and the legislature, particularly the first. Their only commitment has to be with the impartial application of the legal framework in force, defending and guaranteeing individual rights without being subject to pressures that incline their decisions.

It is clear that if the judiciary, at its three levels (ministers, magistrates and judges) is not independent and impartial, private economic agents would not have the guarantee that their property rights would be effectively protected or that in the event of a violation of a contract, the judiciary would force the party that violated it to comply with the stipulated clauses or award the guarantees offered to compensate the damage caused.

Likewise, if the judiciary is not effectively independent, there would not be the certainty required by private economic agents when government acts violate contracts made with private entities or when it issues laws and decrees that are contrary to the precepts established in the Constitution.

If judicial independence and the certainty of its impartiality do not exist, particularly in the face of government acts, private economic agents will demand a higher premium to invest, which implies less investment and less economic growth. Likewise, if there is no guarantee of impartiality, companies will only sign contracts with counterparties that they consider “morally honorable” and that will comply with what is established in the contract, even if they are not the best client or the best supplier, which results in a socially suboptimal allocation of resources.

In the Index of Economic Freedom, the line with the worst score, 4.7/10, was judicial protection of private property rights and the guarantee of compliance with contracts. It is therefore essential, to strengthen the rule of law, to eliminate corruption in the judiciary, including the Supreme Court of Justice of the Nation, where none of the 11 ministers can even have suspicions of corruption (such as the plagiarism of a thesis ) or bias in their decisions, particularly in favor of the government when its actions or laws that it decrees are unconstitutional and violate private property rights (as happened with the Electricity Industry Law); this only makes investment, growth and development more expensive.

ikatz@eleconomista.com.mx