With the insistent claim of this magic formula it is wanted to justify the resistance to renew an expired General Council of the Judicial Power. As if this formula were the most common to organize the government of judges. It is not. In democratic countries, the organization and government of the judiciary adopt different models. But not a recipe as corporate and endogamous as that condensed in the slogan “judges elected by judges”, which the PP proposes to designate the majority of our controversial Council.
Safeguarding judicial independence in the democratic rule of law requires protecting the judge from the pressures he may receive. Crucial point of this protection is the management of access to the judiciary and the career of its professionals. How to get it? Should it be entrusted to a body dominated by “judges chosen by judges”? What formulas do other countries with an established democratic tradition offer?
Italy, which inspired the drafters of our 1978 Constitution, has a Superior Council of the Magistracy, whose presidency falls on the President of the Republic. It is made up of a majority of judges appointed by their peers, along with eight members elected by deputies and senators from among persons from the legal profession or law professorships. Therefore, a majority of “judges elected by judges.”
However, the Italian case is exceptional. None of the neighboring countries follows this pattern. It is not entrusted to a majority of “judges chosen by judges” – as requested by the PP – the selection and promotion of their fellow promotion. In Belgium, for example, where the European Commissioner for Justice so often cited these days comes from, this important function corresponds to a Council of Justice of equal composition: half of its members are judges elected by their peers, but the other half is elected by the Senate from among professors, lawyers and representatives of other professions. Without a majority, therefore, of judges who share this mission with the equal participation of other legal groups and citizens, as interested in the independence and competence of their judiciary as their professionals may be.
France has its General Council of the Judiciary in which representatives of the judiciary certainly participate. But they are in a minority with respect to the other members of this Council, appointed by other political and professional bodies: the Presidency of the Republic, the presidencies of the Senate and the National Assembly, the Council of State and the Council of French Lawyers. Without a majority, therefore, of “judges elected by judges.”
There is also no such formula in England and Wales. The Queen appoints the judges at the proposal of the Prime Minister and his Minister of Justice or Lord Chancellor, following the recommendations of a Nomination Committee. By legal provision, it must be presided over by a person outside the judicial profession. Currently, he is a professor of medicine at University College (UCL), something difficult to imagine in our judicial culture. The commission is made up of five members who are also outside the judicial career and the legal professions (professors, clergymen, executives, etc.), two representatives of legal professions (barrister, pensive O legal Executive), a non-judge official of the administration of justice and seven magistrates of different categories. The majority, therefore, corresponds to people outside the judiciary. To select the non-judicial members of the Appointments Committee, the Minister of Justice or Lord Chancellor appoints a panel of four people unrelated to the judicial career who, after consulting with different professional bodies, will propose candidates to form the aforementioned appointments commission.
It is known that federal judges in the United States are appointed by the president and confirmed by the Senate, that is, the Executive and Legislative are in charge of the judicial selection in which the members of the magistracy do not intervene. The appointment of state judges is regulated by the constitution of each state following various methods, from popular election to parliamentary appointment, but none of them submits it to the majority decision of the magistrates.
Something similar happens in Switzerland. The Federal Assembly elects the federal judges, while the federated cantons elect their magistrates according to their own Constitution, generally combining popular election with appointment by the cantonal Parliament. In Germany, definitive access to the judiciary presupposes a long itinerary that includes exams on your legal knowledge, stays in different public bodies and a trial of the judicial function for five years. The final decision on their consolidation as judges corresponds to a commission, made up of members appointed by the Bundestag and by the ministers of justice of the lander.
Therefore, judicial government bodies with a majority of “judges elected by judges” do not predominate. On the other hand, the decisive and majority intervention of elements outside the magistracy who represent other social groups and, especially, Parliament is recognized. Are they, therefore, a sample of “inadmissible totalitarianism”, as has been claimed? No honest observer can admit it.
In any case, if you want to remove the intervention of Parliament in the election of the majority part of our General Council of the Judiciary and leave it in the exclusive hands of the same judges, this change should be accompanied by the reduction of the 12 judicial representatives to match them, at least, with the 8 non-judicial members, appointed by the Senate and Congress. Leaving the total number of directors at 16 instead of the current 20 could even be beneficial in terms of the effectiveness and efficiency of the body in question. But while it is not possible to amend article 122 of the Constitution that establishes the current number of councilors, insisting on the exclusive election of judges by judges will further diminish the necessary variety and breadth of social, political and professional perspectives from which the exercise of the functions of this constitutional body. In this way, our system would be homologated with that of the countries that grant greater or equal participation to people outside the magistracy in the governance of the administration of justice, without this participation having produced worse results than those recorded here. Rather, on the contrary.
Those who support the thesis of “judges chosen by the judges” probably ignore what was affirmed by Lord Woolf, magistrate and former Lord Chief Justice from the United Kingdom: “Judicial independence is not judicial isolation”. The safeguarding of the free and independent exercise of the judge is not guaranteed with the construction of an impregnable corporate redoubt that inefficiently monopolizes the key sources of judicial government. On the contrary, this isolation can undermine the independence of the judiciary by consolidating union easements and routine practices that have made it almost impossible to undertake an effective modernization of the administration of justice until now and have prevented it from becoming a prestigious piece of the democratic rule of law. Something that should be done urgently and without delay to shore up the punished legitimacy of its institutions.
Josep M. Vallès He is Emeritus Professor of Political Science at the UAB.