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Judicial Government Para Web.Pdf lomo 11 - 16996pprod - judicial goverment.pdf 1 06-09-2019 12:11:48 This book presents a regional study on the situation of judicial government in Latin America based on the analysis of the realities of Argentina, Chile, Colombia, Guatemala and Paraguay. Each country report was authored by a local expert. In addition to a proposal for a conceptual discussion of the topic that includes a review of the history of the independence of the Judiciary in Latin America, the methodological guidelines proposed by JSCA for the local studies set out the variables that should frame any research in this area. These are the constitutional and legal frameworks, government management, adminis- trative management, budgetary matters, disciplinary processes that can be applied to judges, the functioning of judicial associations, the participation of judges in judicial governance, the social aspects of the strengthe- ning of the Judiciary and the relationship between the Judiciary and other political powers. On the basis of all of these elements, the book conclu- des with a comparative approach that draws on the country reports to highlight the similarities and differen- ces of those realities. More importantly, it identifies the main points that should be addressed by scholars and professionals interested in reaffirming the commitment to democratic, independent and effective jurisdiction. As this innovative work demonstrates, JSCA’s commit- ment to the reform of Latin American justice systems also involves consolidating the political field of justice, understood in the republican sense of the Judiciary at the service of the people and achieved through respect for the principles of good management and the functio- nal autonomy of judges in order to enforce the law and the constitutions of their respective countries. JUDICIAL GOVERNMENT Independence and Strengthening of the Judiciary in Latin America Directors Alberto M. Binder Leonel González Postigo Local Report Authors Javier Mokritzky (Argentina) Juan Enrique Vargas (Chile) Ana María Ramos (Colombia) Javier Monterroso (Guatemala) Alberto Poletti Adorno (Paraguay) With the fi nancial support of: Directors Alberto M. Binder Leonel González Postigo Local Report Authors Javier Mokritzky (Argentina) Juan Enrique Vargas (Chile) Ana María Ramos (Colombia) Javier Monterroso (Guatemala) Alberto Poletti Adorno (Paraguay) © 2019 Centro de Estudios de Justicia de las Américas, CEJA Rodo 1950 Providencia Santiago, Chile Tel.: 56 2 22742933 www.cejamericas.org Judicial Government Independence and Strengthening of the Judiciary in Latin America Diseño Portada Carolina Mardones Diagramación e impresión: Gráfica LOM Las opiniones expresadas en los informes nacionales son de exclusiva responsabilidad de los autores y autoras. Distribución gratuita. TABLE OF CONTENTS PROLOGUE ............................................................................................................. 9 INTRODUCTION AND OBJECTIVES...................................................................... 11 SECTION 1. JUDICIAL GOVERNMENT. INDEPENDENCE AND STRENGTHENING OF JUDGES ............................................................................. 13 1. Political and social context: The Judiciary in Latin America ................................. 13 2. Conceptual theoretical framework: Foundations for understanding the institutional structure of the Judiciary ................................................................ 22 3. Main Conclusions ...............................................................................................29 4. Empirical-referential framework: Quantitative and qualitative variables. A basic research matrix .......................................................................................... 30 CHAPTER 2. THE REALITY OF LATIN AMERICA. EXAMPLES AND MODELS ......... 33 1. Argentina ............................................................................................................ 33 2. Chile .................................................................................................................. 69 3. Colombia ......................................................................................................... 107 4. Guatemala ........................................................................................................ 137 5. Paraguay ........................................................................................................... 152 SECTION 3. COMPARATIVE ANALYSIS AND GUIDELINES .................................. 183 1. Comparative analysis: Main findings of the country reports ........................ 183 1. A. Government management. Policy and strategic management............. 183 1. B. Administrative oversight. General management policies..................... 186 1. C. Budgeting: Design, execution and oversight ...................................... 190 1. D. Discipline, ethics and training for judges: Rules and processes ..........191 7 JUDICIAL GOVERNMENT 1. E. Judicial career: Impacts on judges’ independence .............................. 194 2. The work plan: Guidelines for a discussion of judicial government ............. 195 8 PROLOGUE1 Judicial government is an essential issue for consolidating Latin Ameri- can democracies. Conceptually defining and empirically exploring it and how the Judiciary works in different nations is a fundamental task for gua- ranteeing both the legitimacy of judges in the performance of their duties and, more importantly, the fair impartation of citizens’ rights. The dis- cussion of judicial government should include a political aspect, which addresses the independence of the Judiciary from other public entities and interest groups and should also consider the operational aspect of the organization and actions of judges from the perspective of the stren- gthening of their functional autonomy, and the transparency and objec- tivity of the rules regarding the selection, appointment and promotion of judges in the judicial career. The failure to distinguish between political and administrative functions within the Judiciary, mainly those exercised by individuals who hold high-ranking positions, has made it difficult for us to understand and approach the dynamic of justice in our societies. In addition, members of judicial careers have questioned the impartiality and management of the system. For all of these reasons, this book addres- ses an important social and institutional issue that began to appear on the public agenda in the early 1990s. However, due to developments in each of the countries of the region and the continent as a whole, it has not been positioned as the cornerstone of democratization. The effort made here to revisit and update this discussion, particularly from the perspective of countries that have faced the most difficulty separating governance and jurisdictional functions within Judiciaries or that have been pressured by public opinion, private interests or members of the Executive or Legisla- 1 This document is an abbreviated version of the original, which is available in Spanish at: http://biblioteca.cejamericas.org/bitstream/handle/2015/5613/ gobierno%20judicial.pdf?sequence=1&isAllowed=y 9 JUDICIAL GOVERNMENT tive Branches frames the commitment of the Justice Studies Center of the Americas (JSCA) to the comprehensive and systemic view of the impro- vement of Latin American justice systems. The five case studies presented here (Argentina, Chile, Colombia, Guatemala and Paraguay) and the in- troduction to the report are a point of departure that invites judges, aca- demics and citizens to focus on the importance of a strong, transparent and efficient Judiciary for the countries of Latin America. Jaime Arellano Quintana Executive Director, JSCA 10 INTRODUCTION AND OBJECTIVES The Justice Studies Center of the Americas (JSCA) with the financial su- pport of Global Affairs Canada (GAC) has developed a regional study on the situation of judicial government in Latin America. Its main purpose is to generate information in order to contribute to the renovation and deepening of the discussion on the independence of judges in the region. In order to develop this research, five national realities that have been the subjects of varying levels of discussion and progress in regard to the independence and strengthening of the Judiciary were selected. We have three countries with different profiles and functions of Judicial Councils. In Colombia, the Judicial Council was introduced through the constitutio- nal reform of 1991, absorbing all government and management powers. In the federal justice system in Argentina, the Council was created throu- gh the constitutional reform of 1994 and was given three fundamental tasks: budgetary administration, participation in the selection of judges, and disciplinary powers. In Paraguay, the Council was included in its legal organization after the Constitution was reformed in 1992, though with a very limited role: to propose candidate lists for judicial roles and manage the Judicial Academy. We also describe the experience of two countries that do not have this institution. In Chile, the government of the Judiciary is handled exclusively by the Supreme Court and adminis- trative powers are held by a specialized agency that is located within the Judiciary. While the recovery of democracy has offered an opportunity to create a Judicial Council, it has not translated into a concrete change. In Guatemala, the system of government and administration is handled by the
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