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Paper title: Analysis of the reform of the Judges Appointment Board [Consejo
de la Magistratura] vis--vis the Pure Theory of Law and the philosophical
definitions of Justice. Its relationship with the form of government.
Email: roisjus@gmail.com
The Argentine Judiciarys independence has been put at stake by a law
analyzed in connection with the subject discussed today: the Judiciary's independence.
The reform sought adversely affects the republican form of government by annihilating
points, namely:
a result, the laws at issue alter the form of government of our state, which would no
longer be a republic;
theories developed well before Christ regarding the crucial significance of the definition
determination of the persons who administer justice, for this, in turn, specifically and
directly determines and affects a states form of government during its lifetime.
This law package has been wrongly named democratization. This name
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
even with the tiny amendments by the House of Representatives directly affects the
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
strongest.
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
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.
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,
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.
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
democratic value, which would be precisely hampered by the reform sought, for it is
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
Sagus 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 Constitutions "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
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
In the case under analysis, i.e. the Judiciary's independence vis--vis the
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.
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,
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
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,
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
manifest violation of the wording and the spirit of Section 114 of the Argentine
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
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
(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,
All the foregoing poses one of the major issues of the Rule of Law: the
politics in the decision of legal disputes, which affects the republican form of
However, as I stated before, this fact and the impairment of the Judiciary's
independence needs to be proved. Firstly, we have the judges ideology, which, in itself,
objectively consider the facts brought before them for their resolution is conditioned by
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.
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
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
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.
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
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, peoples 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
possible that they will only find fair what is convenient to the powerful? These
questions arise from the philosophical creation of Platos The Republic, which analyzes
4
Aristteles Obras Selectas, Poltica. Libro SEXTO. De la democracia y de la oligarqua. De los tres
poderes: legislativo, ejecutivo y judicial. Captulo IV: Especies de democracia ( Aristotles Selected
Works, Poltics. 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
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
Interference of any of them with any of each other can only be to the detriment of the
intervention causes serious problems for the general control of society and hampers 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 this5, 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 Repblica. Libro Primero: Anlisis 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
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
-Do you know he asked- that some cities are ruled by a tyranny, some by a
- Of course!
-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
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 Kelsens 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. Teora Pura del Derecho. Translated by Moiss 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 Kelsens 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
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.
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
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
Pursuant to Act No. 24,937, as partially amended by Act No. 26,080, the
- 3 Federal Judges elected under the Dhondt 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)
Let us analyze: how many members does the ruling party have in the Judges
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
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.
Let us now see the composition if the amendment of Act No. 24,937
namely:9
- 3 Federal Judges, elected by universal suffrage; 2 from the party winning by a simple
- 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
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
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
Judiciary's independence, the reform impairs national legal certainty in our government
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.
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 strongests 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
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
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 Executives
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-
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
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
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
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.
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
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 kings 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
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
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
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 Crculo Vicioso: quis custodiet custodes?" (the Vicious Circle:
who controls controllers?), following lecturer Luis Anbal Maggio, doctor in philosophy of law.