Council of the Magistracy cannot resolve its flaws without exclusive dedication
The recent election of its members deepened an old issue surrounding the Council of the Magistracy: the lack of exclusive dedication of those making up the body, who will continue occupying their positions in the Judicial, Legislative or other areas at the same time. This multiplicity of tasks is not only detrimental to the performance of the Council but also brings about further complications: backlog of cases in the courts presided by those representing the judiciary and possible conflicts of interest within the legal profession. The Council must move forward to curb this problem, and the Argentinian Congress must resume the debate to enact a norm that establishes such full-time commitment.
There is no doubt about the structural dysfunction in the performance of the Magistracy Council. This is particularly obvious in the judge appointment procedures, where huge delays in resolving the competitions result in one void position out of four in the National Judiciary and an average of twenty-one months per selection process. The lack of full-time dedication is one of the reasons for this. The work overload of those serving as members of the Council while remaining in their places as judges, representatives, senators, or lawyers hinders the Council from fully realizing its task, considering that the body meets barely once or twice a month.
One serious drawback concerns the judges holding a seat in the Council: overburdened by severe backlog in their courts, they take up an additional responsibility in an equally strained institution without leave from their original post. The new composition decided for the Council, which incorporates judges from the highest courts, only worsens the situation.
As to the attorneys, there is currently no mechanism to avoid conflicts of interest between their professional practice and their mandate as councilors.
For years, civil society organizations have been demanding that the law regulating its proceedings adopt, among other amendments, the exclusive dedication of its members. Unfortunately, none of the recent administrations considered this in their proposed legislations, although it has been contemplated by a number of legislators.
In this context, we suggest a series of urgent steps to be taken.
1. COUNCIL MEMBERS should request a leave of absence from any other position they hold and devote themselves exclusively to their seat in the body.
a. Judges must request a leave of absence when there are “well-founded reasons that prevent them from performing both duties simultaneously,” as provided for in Article 28 of Law 24.937 (and amendments).
b. Should judges not be required this leave of absence, the Council of the Magistracy must examine the workload in the courts where the councilors are serving. If delays are longer than those of the same jurisdiction, the Council must report this situation to the court exercising the superintendence.
c. At the very least, magistrates integrating the Council should be barred from substitute offices, by analogous application of the ban on appointing substitute judges among those with significant backlogs, provided for in Article 7 of Law 27,439 on Subrogation.
a. Lawyers must suspend their registrations in all jurisdictions, not only the federal district as required by the current law, for the length of their term of office to avoid any conflicts of interest.
b. They must also publicize their sworn statements before assuming their position so that society is aware of potential conflicts of interest.
c. The Council of the Magistracy should establish a conflict of interest prevention mechanism that, at a minimum, requires elected members to submit a sworn statement incorporating similar provisions to those established for candidates to the Argentinian Supreme Court of Justice (1).
4. The Argentinian Congress must resume the debate, reach a basic consensus and urgently move towards a new law regulating the Council of the Magistracy to make up for the current inefficiencies. The discussion launched in the Lower House a few months ago, later brought to a halt by the vagaries of politics, showed that there is absolute agreement on the need to change the current procedures of the Council and even points in common between the ruling party and the opposition. All sectors must assume responsibility and build on those areas of agreement.
We must change the reality of the Council of the Magistracy; its dysfunction is one of the many reasons for the administration of federal justice departing further and further away from the basic parameters of the rule of law. It is time we stopped taking this shameful zero-sum game for granted, where no side gains, but all make a significant loss in the quality of our democracy.
Association for Civil Rights (ADC)
(1) Decree 222/2002, art. 5: “They shall attach another statement in which they include the list of the civil associations and commercial companies they are or have been part of in the last EIGHT (8) years, the law firms they belonged or belong to, the list of clients or contractors for at least the last EIGHT (8) years, within the allowances provided by the professional ethics rules in force, and in general, any type of commitment that may affect the impartiality of their judgment due to their own activities, those of their spouse or first degree ascendants and descendants, with the purpose of enabling the objective assessment of potential incompatibilities or conflicts of interest.”