The Budget Commission of the Chamber of Deputies approved an amendment to the Organic Law of the Federal Judicial Branch, by means of which it intends to eliminate 13 of the 14 Trusts available to the Federal Judicial Branch. The Federal Executive stated that such reform only intends to cut privileges “to those at the top”, while the Judicial Branch has indicated that it would affect its operation and the acquired labor rights of its workers, among other obligations.
In any case, carrying out this reform and disposing of this resource, which would pass into the hands of the Treasury, is a frontal attack on the independence of the Judicial Branch.
The powers
In any Constitutional and Democratic State under the rule of law, the function of power is divided into executive, legislative and judicial. The powers are on the same constitutional plane, none depends hierarchically on the other, and none interferes with the actions and decisions of the others. This was pointed out by Montesquieu in the 18th century and has been implemented in all democracies around the world.
The Judicial Branch plays a transcendental role because it is the power in charge of settling disputes between individuals, and between individuals and the State, but it is also a guarantor of the human rights contained in the Constitution and international conventions.
Ultimately, it is the body that safeguards the constitutional principles enshrined in our legal system. In Montesquieu’s conception, the settlement of disputes should be carried out by jurisdictional mechanisms through a non-political power. As a matter of fact, the nature and functions of the Judicial Branch, unlike the other two, is not political but purely and strictly legal.
In order to guarantee the correct exercise and operation of the Judicial Branch, it is necessary that its constitutional and legal statute makes it possible, and for this purpose it must enjoy total independence.
Judicial independence means that the Judicial Branch and judges have complete freedom to perform their function without any kind of interference or pressure, whether political, economic, administrative or bureaucratic. Independence is the judge’s impartiality, which means that the judge must act away from any bias or personal preference, and to this end he must take the same standard as the only referent. In Bobbio’s terms, it is about the “valuational neutrality of the scientist.”
Judicial independence
Judicial independence usually takes the form of guarantees that have been called jurisdictional guarantees. The first, and perhaps the most important, is financial autonomy. The efficiency and proper performance of the Judicial Branch is closely linked to its economic and budgetary autonomy.
The Judicial Branch must have sufficient means to carry out its functions; this implies, among other activities, the payment of salaries, the construction and maintenance of buildings and infrastructure, the purchase of equipment, stationery and other supplies.
The second refers to fair and well-paid salaries. The competitive salaries of judges and judicial officers is not a liberality, but is rather the result of the transcendence of its functions and their technical knowledge.
Judges and magistrates hear extremely important cases in which their physical integrity or even their own lives may be at risk. A correct salary and employment benefits above the law is intended to make the judge independent from any kind of pressure or bribery attempt. It is not that such cases do not exist, but it is up to the Judicial Branch itself to discipline and sanction its members.
The third guarantee
The third guarantee refers to access to and tenure in judicial office. Members of the Judicial Branch are appointed to their positions based on objective criteria such as the presentation and passing of competitive examinations, and acquire the right to remain in their positions for definite or indefinite periods of time, unless they incur in conduct that warrants their dismissal. This judicial stability guarantees security and peace of mind in their employment.
Furthermore, it should be noted that the above guarantees do not imply a condition of impunity, as any State official, judges may incur civil, criminal, administrative and even procedural liability.
In conclusion, affecting the trusts of the Judicial Branch constitutes an affront to the independence of the Judicial Branch and its members. It is false to maintain that by cutting the trusts only a privileged group of the Judicial Branch is affected; the damage will be to all members of the Branch at all levels and ultimately to the user of jurisdictional services, which is the ordinary citizen. In the words of Perfecto Andrés Ibañez “damaging judicial independence translates into direct damage to the quality of civil life.”
Research data
José Juan Anzures Gurría, Research Professor Universidad Panamericana.
PhD in Law from the Universidad de Navarra, Member of the National System of Researchers
