Selection of Judges, the role of politics

Pan American Institute of Procedural Law Selection of Judges, the role of politics Judge Sergio Henriquez Chile Chapter, Pan American Institute of Procedural Law https://doi.org/10.5281/zenodo.14226319 Abstract This paper presents an overview of the role of politics in the selection of judges, and its impact on key pillars of a republican judicial system that respects due process and the rule of law, such as judicial independence, both internal and external. This presentation is part of the Colloquium "The Judiciary in Chile today: Reflections on its normative structure", organised by the Universidad Mayor and the Pan American Institute of Procedural Law, Chile Chapter. Keywords: selection of judges, politics, council of the judiciary, nomination of judges Appointment and Selection of Judges and Politics To speak of politics and judges would seem to be a real oxymoron, and in truth this should be the case most of the time, since judges are expected to concentrate their activity on only one thing: jurisdiction, and to do so, they are subject only to the law and the Constitution. Politics has nothing to do with it, at least if we understand it as "deliberative politics". Of course, the law and the Constitution, as well as the fact of exercising jurisdiction is, of course, the fruit of a debate and a very relevant political decision, which establishes a form of Republican State, which separates its Powers, but when we speak of politics, we clearly do so in the deliberative sense, as i t is posed in Parliament, or in the Executive Power. Thus, with Taruffo, "The judge who correctly performs his function in fact tends to orient his activity by considering the fundamental principles that are expressed in the constitutional charters or, at any rate, those principles that are commonly accepted in the culture and in the conscience". Lawyer, Bachelor's Degree in Legal and Social Sciences from the University of Chile. Master's Degree in Child, Adolescent and Family Law from the Universidad Diego Portales. Master in Procedural Law from the National University of Rosario. Member of the Pan-American Institute of Procedural Law, Chile Chapter. Member of Humanizar, Chilean Association of Therapeutic Justice. Member of the National Association of Magistrates of Chile. Titular Judge of the Court of Letters, Collection, Labour, Family and Guarantee of Quintero. Currently assigned to the Centre for Precautionary Measures in Santiago. Orcid N°0000-0002-8182-4735. SELECTION OF JUDGES AND THE ROLE OF POLITICS 2 social. In other words, its value choices are oriented towards the just and correct implementation of the legal system and the protection of citizens' rights. On the other hand, political power can be oriented - as is often the case - towards defending and realising interests other than those of society as a whole, or of citizens, which are protected by law. Sometimes these interests may be lawful - insofar as they do not contradict legal norms - but they are not worthy of judicial protection: one need only think of the numerous cases in which political power tends to favour one social class over another, to favour a pressure group or lobby, or to support the interests of centres of economic or commercial power" (Taruffo, 2005, pp. 15-16). But even so, does such a policy have anything to do with the judiciary? The answer is yes, and, surprisingly, this does not undermine the republic and the rule of law, as it will depend on the form and safeguards that are taken as to whether such a relationship has an impact on the exercise of jurisdiction. This happens because the relationship with this "politics" is inevitable, and denying it only leads to oblique, opaque and corrupt forms of relationship, which can affect judicial independence and the exercise of jurisdiction. This is what has happened, and continues to happen in Chile, with practices that everyone knows about, but no one confesses to (or worse, are "discovered" in media cases that discredit the judiciary). This is reinforced in models for the selection of judges that value the nominated "Judge with an outstanding track record" which, in the absence of adequate structures to measure and recognise such merit, forces them to seek support from key figures who are then required to demonstrate their confidence in that track record. A notable study by Herrera on the recent effort to reform the system of appointing judges in Ecuador explains this point clearly: "Taking up the notion used by Yves Dezalay and Bryant Garth (2002) in their study of administrative elites in Latin America, these are highly educated jurists, capable of relying on their general knowledge of the law and professional experience to occupy key positions in the social hierarchy (...) it is worth focusing on one element of this profile: the high capacity for professional mobility. In fact, the Court magistrate is typically a jurist whose career develops both within and outside the judicial sphere (...) These are prestigious jurists with a high capacity for professional mobility, but who paradoxically show little or no membership of the judicial institution, prior to their appointment to the Court (...) Appointment by Congress places practices such as patronage and inter-party negotiation at the centre of the access routes to the country's main court. In this model, proximity to the political sphere becomes an indispensable criterion for any jurist interested in becoming a judge. This favours the selection of notable jurists whose distinctive feature is their presence in multiple areas of professional activity, including politics. (...) To quote the words of Congressman Carlos Julio Arosemena Monroy in 1979 - he himself was a magistrate of the Court a few years later: "I know those who were appointed and I know that they are good lawyers and that they have been good judges. They will perform to the best of their ability the very high functions that have been entrusted to them" (Herrera, 2021, pp. 123-127). Avoiding areas of undue influence, or of mere 'opacity', lack of transparency and arbitrariness, which detract from merit, is what has been tried in SELECTION OF JUDGES AND THE ROLE OF POLITICS 3 many structural reforms to the system of appointments of judges, where often politics, and in many other more prosaic interests, influence such appointments, to the detriment of those who have the best background and conditions to exercise the position and, consequently, to the detriment of the people who will receive the respective judicial service. Radical measures have been proposed to overcome this problem, such as, for example, electing judges by popular vote, under the argument that, at least in this way, like parliamentarians and members of government, they will have democratic legitimacy to exercise this jurisdictional power. Basically, this solution implies a total renunciation or surrender to this deliberative policy: while we are at it, let it be transparent, and let it be within the rules of the democratic game. This is the solution that Mexico has given itself, if it can be called that. Another radical proposal is for the selection of judges by drawing lots, as randomness would prevent any kind of extraneous influence, guaranteeing a total "asepsis" of the process. A bill contained in Bulletin n° 17144-07 proposes this. Then there are those that have been developed under the auspices of the Councils of Magistrates, the recommendations of international organisations, and our own proposals in the recent constitutional and parliamentary debates in Chile. Let us first examine the radical proposals. The alternative of electing judges is not new; we are familiar with it from the North American and Bolivian experience, for example. But we have taken note of the dramatic reform of the Mexican justice system, recently approved, which we cannot overlook. I must point out that it is not a good system, despite how attractive it may sound that it gives "democratic legitimacy" to judges, the fact that they are appointed by popular vote. There are several reasons for this, which I will now highlight. It was already known from the US and Bolivian experience that elected judges lose their external independence every time they enter a campaign, because far from focusing solely on exercising jurisdiction, they must also think about their electors, if they are to be re-elected, or about their new jobs, if they are to leave office. This is something that was noted precisely in relation to the system of electing judges in Bolivia. In this respect, this author, in another work, has pointed out that "The conflict over the selection of judges in the United States is largely related to a theoretical controversy over the degree to which judges should be responsive to voters or act independently of electoral control. Incidentally, the controversy also has a political aspect, as certain interests will benefit from judges being more responsive to their constituents than more independent judges. The majority party in a state, for example, is likely to prefer elected judges, as the system will ensure that the party gets more political office for its members (...) Also noteworthy is the personal reflection of Professor Robert H. Alsdorf, recounting his own experience as a judge in the American system in the face of reelection: "I am aware that this reality affected me as a judge, and even more so as the election approached. I used to ask myself 'What will the public think of this ruling? If I express myself in this way, will they vote for my removal?" (Henríquez, 2021, pp. 14-15). On the other hand, political campaigns for elected office, although they may be transparent among the official parties recognised by the state, in cases such as Mexico's, it is clear that the risk of unwanted actors such as organised crime, read drug cartels and organised crime, being involved in the political process is high. SELECTION OF JUDGES AND THE ROLE OF POLITICS 4 The Mexican case has been highly criticised, and just to give an example, I quote a recent statement by the renowned judge Manuel Atienza, in a Conference disseminated on social networks and websites, on November 2024, in a conference on social networks and websites, on November 2024, in a recent statement by the renowned judge Manuel Atienza, in a Conference disseminated on social networks and websites, on November 2024, in a Conference disseminated on social networks and websites, on November 2024, in a conference on social networks and websites, on November 2024. The Mexican case has been highly criticised, and just as an example, I cite a recent statement by the renowned judge Manuel Atienza, in a conference disseminated on social networks and websites, on 22 November 2024: "Mexico has ceased to be a State of Law, it was in recent decades and now it has ceased to be or will cease to be, to the extent that these measures are being implemented (...) without judicial independence, there will be no judicial independence without judicial independence....) without judicial independence there is no separation of powers, without separation of powers one of the requirements of the rule of law is missing, and the reform obviously puts an end to judicial independence in Mexico" (Atienza, 2024). In relation to randomly selected judges, this system assumes a prior stage of nomination of candidates who, to a certain extent, can advance in a merit-based competition system. Once a roster has been generated, instead of leaving the final choice to a selection committee, it is left to a system of drawing lots, which implies the absence of any political intervention or interest of any kind. The problem underlying this system is that this total "asepsis" not only eliminates any possibility of corruption, but also any possibility of merit and recognition, i.e. the cure is worse than the disease. In effect, a lottery system infantilises judges, denies them their merit, and leaves their appointment to "chance". There is nothing more puerile and less legitimate than chance to hold a position of such importance as that of dispensing justice. Basically, it is repugnant to the very meaning of what is human, because it excludes any action that can be evaluated or weighed up. Inevitably, we must conclude that any system that is devised will have to include a decision-making phase, a moment in which others will have to decide, and that moment is, par excellence, a political space. But we must not understand this space as something necessarily negative, corrupt and putting the pillars of the Republic and the Rule of L a w at risk. The internal and external independence of judges, a guarantee for citizens that their disputes will be resolved by impartial and independent judges, who will only submit their cases to the law and the constitution, is perfectly compatible with a system of appointments that recognises politics as part of its system, to the extent that it also adds guarantees of transparency and clear limits to its actions. Currently, there is a clear consensus that it is necessary to change the current system of appointing judges, an issue that has been requested by the National Association of Magistrates and by the Supreme Court itself for several years, and also reflected in the failed constituent processes. The controversial "audios" case has also prompted a legislative agenda along the same lines, aimed at overcoming our current system. In this regard, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, at the end of her official visit to Chile on 9 August 2024, stated in her preliminary report that "There is a strong consensus - from the bottom up - on the need to separate the administrative and jurisdictional functions for which the Supreme Court is responsible. At present, the Supreme Court sits at the apex of a hierarchical system in which it reviews the decisions of lower court judges, issues directives, provides economic oversight, and provides judicial oversight and oversight to the judiciary. SELECTION OF JUDGES AND THE ROLE OF POLITICS 5 and oversees the discipline and evaluation of those same judges. In addition to contributing to the overburdening of the Supreme Court, this hierarchy impedes the internal independence of judges. The Supreme Court itself supports the required changes, which were also included in both draft constitutions. For these reasons, I urge Chile to adopt the necessary constitutional amendments to eliminate the administrative and supervisory responsibilities of the Supreme Court in an expeditious manner" (Satterthwaite, 2024, p. 2). Next, we will examine some proposed models to solve the problem of the link between judges and politics, in the appointment and selection of judges, and we will also conclude with the necessary attitude with which this challenge must be faced, a question that is also political, but in a more individual dimension, with an impact on the collective. The Magistrates' Council model It is one of the best known forms of judicial governance in comparative law. They came into being after the Second World War, in the context of the reforms of the European States, as Rebollar and Rosales point out: "After the Second World War and the reform of the European States, an institution was innovated with the aim of making the jurisdictional function of the State more efficient, by means of an independent administrative body for the Judiciary. It can be seen that the first consideration for the creation of these Councils is the external independence of the judiciary. Thus, they appear, in the first place, as institutions in charge of managing a relatively small part of the organisation of justice (...) The Council is established as a specialised body within the Judiciary and with the aim of protecting judges from the "intervention" of other agents, by guaranteeing independence (internal and external) towards the judiciary" (Rebollar & Rosales, 2016, pp. 212-213). Some time ago, I defined it as "an autonomous and independent public body, whose essential function is the appointment and dismissal of the judges of all the courts of the Republic, at all levels, including both the ordinary courts and those special courts expressly designated to them by law" (Henríquez, 2022b, p. 155). Its purpose has always been to separate administrative functions from those that are proper to the exercise of jurisdiction, although we know that its results have been dissimilar and criticised, with both good and bad experiences. It should be noted that this was the model contained in the draft constitution that was plebiscized on 4 September 2022, and which was rejected, but clearly not because it disdained this form of judicial government. As I said on another occasion, "one must start by saying that, very doubtfully, the reason for this rejection was due to a sharp reading of the provisions relating to the judicial system. It is a subject under permanent study, but it is to be presumed that such a dry, dense and unattractive subject could not have motivated the interest of the citizens of Chile. This is relevant because the debate took place among experts, and in this context, there was a fairly broad consensus on the need for change, on the one hand, and on the other, with more or less reservations, on the proposal of the Council of the Magistrature under the name of the "Council of Justice" (Henríquez, 2024, pp. 6-7). In this respect, Chile is a rarity in the region. Eguiguren states that "The adoption of Judicial Councils or Magistrates' Councils has been a characteristic feature of the organic and institutional innovations in judicial reforms. SELECTION OF JUDGES AND THE ROLE OF POLITICS 6 of most countries in the Andean region. Since their initial implementation in Venezuela, they were later extended to Colombia, Peru, Bolivia and Ecuador; paradoxically, in Venezuela, the "way back" has been taken, since the recent Constitution abolished the Council of the Judiciary and confers its competences to the Supreme Court. Chile, for its part, is the only country in the region where this body does not exist" (Eguiguren, 2001, p. 3). The aim of these Councils is not only to select and appoint judges, but also to manage everything related to the management, budget, training and accountability of magistrates. All of the above is concentrated in a single, autonomous body. However, it has been criticised that, in general, they have not been able to provide the guarantee of judicial independence that was expected and, on the contrary, they have become politicised, capturing these bodies in the hands of political or interest groups which, to their benefit, appoint the members of the Councils, and therefore influence the appointment of judges. "There is an abundance of specialised literature which, through the analysis of extensive comparative experience, demonstrates how the membership of these councils can be quickly captured by political parties or groupings (Brinks; García and Mancusi Ungaro; and Nieto, among others). For example, a study by Garoupa and Ginsburg, cited by the Justice Studies Centre for the Americas, analyses the evolution of the rule of law index in countries that have adopted this type of Council since 1996. This study shows that the evolution of the index has been negative in 39 countries and positive in only 27. This information is relevant because "judicial independence" is a crucial component measured by this index" (Programa Reformas a la Justicia, 2024, p. 9). However, not all experience has been negative, as highlighted by the National Association of Judges and Magistrates of Chile, in particular the experiences of Belgium and Portugal: "At the international level, there are virtuous cases in which the institutionalisation of this policy, with an appropriate balance between the different bodies represented there, has allowed the supreme courts to successfully remove the heavy burden of management. Such have been the cases of Portugal, Belgium, Italy, France, Canada and Denmark, to name but a few" (Magistrates, 2023, p. 25). For their part, international bodies guaranteeing judicial independence, such as the UN rapporteurship on the matter, do not recommend the elimination of these bodies, but rather their improvement, as the respective body of the Council of Europe also suggests: "the GET refers to the text of Recommendation CM/Rec (2010) mentioned above, which calls for the election of at least half of the Council by the judges themselves through a democratic system in which all judges have the right to vote and to be elected. The GET also draws the attention of the authorities to Opinion no. 10 (2007) of the Consultative Council of European Judges (CCJE) which explicitly states that political authorities such as the Parliament or the Executive should not be involved at any stage of the selection process" (Group of States Against Corruption, 2013, p. 26). Much of the criticism levelled at these bodies can be grouped along three lines: integration; conflicts with the internal hierarchy; relocation of the selection problem. Let us look briefly at each of them. SELECTION OF JUDGES AND THE ROLE OF POLITICS 7 Problems associated with the composition of the Councils of the Judiciary. Many of the criticisms of the Councils of the Judiciary have focused on their composition, insofar as they are collegiate bodies, composed of members who may come either from the judiciary itself or from political bodies, either directly or indirectly. Bad experiences tend to evoke the case of Argentina, where the representation of political actors in the Council far exceeds that of representatives of the judiciary, although even this is nowadays being called into question, given the already strong infiltration of politics in appointments, and it makes no difference whether the number of judges on the Council is increased or not, as they are already highly politicised. Castagnola argues that "studies show that the greater the proportion of judges on the councils, the more politicisation is not necessarily reduced. In a recent study based on interviews with federal and national judges, Juan José Nardí reveals the logic of the political fabric within the judiciary and the relationship between the judiciary and party politics. According to the author, the creation of the council broadened the scenarios of serious power struggles, which redefines the links between the judicial family and the political family. The recent elections for councillors representing the bar associations revealed that these candidates were sympathetic to some of the political parties already on the council" (Castagnola, 2023, p. 177). Thus, it has been suggested that, in order to ensure the minimum influence of external political bodies that jeopardise the external independence of judges, it is advisable that the majority of the members of this Council should not be members related to political or de facto powers outside the judiciary and that, on the contrary, judges should form part of this Council, constituting a majority. In this way, the non-interference of external political interests is ensured, as well as expert knowledge of the judicial task, due to the participation of judges in it. Furthermore, it has been recommended that the judge members of this Council should be elected by their peers. The first constituent draft contained in its proposal for the Council of the Judiciary a composition that did not include a majority of judges, an issue that was criticised at the time: "Although the judges, together with the judicial officials, manage to establish a majority of a "technical" nature, above political or other criteria, the fact is that nothing guarantees that the judges will join forces with the judicial officials, which opens the possibility that the political bloc will impose itself in a de facto majority over the judicial bloc. In this sense, it would have been preferable for judges to have constituted per se the majority necessary to guarantee the preference of technical and professional criteria, without the need to count on this alliance with judicial officials, which could lead to negotiations on one side or the other to establish a majority that is no longer strictly speaking of a technical nature. In this sense, the current integration may lead to a predominance of political criteria, with judicial officials becoming the hinge of the other groups and representatives of the Council of non-judicial origin" (Henríquez, 2022a, p. 6). On the other hand, it has been criticised that a majority presence of judges, elected among themselves, can facilitate a corporatism that is not healthy for the objectives that a Council of the Judiciary is intended to achieve, because instead o f avoiding a capture by external entities, it ends up facilitating an internal capture, that SELECTION OF JUDGES AND THE ROLE OF POLITICS 8 also undermines judicial independence. In this regard, Edoardo said that "another issue, also linked to the independence of the judiciary, is that of the so-called currents of the judiciary, which present themselves as real political parties and which make the Higher Council of the Judiciary their own parliament. The Council, the governing body of the judiciary, has been transformed into an assembly of the corporate representation of the judiciary, which manifests itself competitively on the basis of the division into these currents, which are nothing more than aggregations of judges connected by certain political ideas, ambitions for power and desire for leadership" (Edoardo, 2022, p. 632). To this end, measures have been proposed such as ensuring a majority of judges, but hardly more than half of its members. On the other hand, some Councils, such as Portugal's, have opted for a more moderate system for electing their members, allowing some of their judges to be elected by an authority and others by their peers, thus reducing the risk of corporatism, among other measures: "the Council, in its composition, has a majority of judges (nine of its seventeen members), and yet a minority of judges elected by their peers (seven elected judges) (Afonso, 1993, p. 98)" (Afonso, 1993, p. 98). Moreover, all these risks, both of corporatism and of external influence by political groups or factual interests, can be prevented with other types of annexed measures, such as the duration of the term of office, partial renewals of members, prohibition of re-appointment, prohibition of nominations for specific positions once their terms on the Council have ended, for a certain period of time, measures of active transparency and accountability, among others. Problems associated with conflicts with the internal hierarchy of the judiciary It has also been suggested that a Council of the Judiciary, and indeed any body outside the Supreme Court itself and the current organic configuration of the current judicial government, would alter and put the judiciary at risk, as it would generate serious difficulties with the internal hierarchy of the Judiciary, which exists in a pyramidal form between the Supreme Court at the top, the Courts of Appeal, and then the lower courts at the bottom. It is suggested, for example, that such a body could question the necessary discipline that should be imposed hierarchically by the Court of Appeal, or the Supreme Court as the case may be, on its inferior, affecting the exercise of the judiciary. This was the conclusion of the FINAL REPORT ON REFORMS TO THE CHILEAN JUDICIAL SYSTEM, which was commissioned by to the Comisión de Estudios del Sistema Judicial Chileno, and published by the Centro de Estudios Públicos: "The Supreme Court, as the highest court of the nation, must represent the highest authority of our Judicial Power, around which jurisdictional activity is hierarchically organised. It has directive, correctional and economic superintendence over all the courts of the republic, and it could not be otherwise. No one knows the work and conditions of the lower court better than the higher court; by the mere fact of constantly reviewing its work, it is in a better position to hear complaints about it. And such a function cannot be delegated. Transferring the disciplinary control and grading of magistrates to the Council would distort the hierarchical system of our courts, creating a conflict of importance or superiority between the Supreme Court and the National Council of the Magistracy, which is not advisable. Furthermore, such a transfer would undermine the unity of the jurisdiction, since a body not subject to the SELECTION OF JUDGES AND THE ROLE OF POLITICS 9 The Supreme Court, the head and highest authority of the judiciary, would become involved through disciplinary jurisdiction in the work of the courts, by reviewing the jurisdictional act, qualifying it and eventually annulling it due to faults or abuses committed in its issuance. The Council, on the other hand, would condition, through disciplinary jurisdiction and qualification, the behaviour of judges, which would decisively affect their autonomy and independence. This is for a very human reason, the desire of every person involved in a career not to be at odds with the people who are responsible for deciding his or her future" (CEP, 1991, p. 288). The problem with this argument is the following: why should the hierarchy of the courts matter when deciding, and should not a judge of instance, and Minister of the Court, decide in accordance with the law and the constitution equally, and nothing else? To assert that a kind of hierarchy between courts is required to control the exercise of jurisdiction through disciplinary control is precisely the opposite of the internal independence that judges require in order to decide. Indeed, judges should not think, when ruling, of what their hierarchical superior would like them to rule, but of what the law and the constitution establish for that particular case. It has rightly been said that to speak of hierarchy among judges is as absurd as to speak of horizontality in the army. But as we have seen, this argument has been strongly sustained in our country in order to maintain the organic structure of judicial governance as it is today. In fact, the most recent proposals for judicial governance maintain the differences and hierarchies, when in truth there should only be a differentiation of tasks or functions, but not of hierarchies. Problems associated with the transfer of the selection of judges. It has also been argued that the problem of the external independence of judges, as well as the problems of corruption revealed by the audios case, will not be solved by a structural change in the system of selection and appointment of judges: corruption can infiltrate all systems. Suffice it to recall "the corruption scandal in which telephone tapping between congressmen and members of the Peruvian Council of the Magistrature was revealed in order to arrange the appointment of judges, bypassing the established procedure, which led to the resignation of all its members and the total replacement of this Council of the Magistrature by the currently in force "National Board of Justice", through Law No. 30.904, which came into force on 10 January 2019" (Henríquez, 2022b, p. 163). At heart, this position is conservative, arguing that it is better to keep what we already have, perfect it, and not risk creating new institutions that may ultimately end up in the same thing. This is correct, no system is perfect, nor infallible to corruption, but this argument cannot be accepted because, if it is accepted, there is no reform that is valid, as any reform is fallible. On the other hand, it is undeniable that for several years, long before the so-called "social outburst" and the "audios" case, the need to change the system for appointing judges has been raised, as it is clearly contrary to the most basic principles of transparency, merit, equality and a guarantor of the necessary internal and external independence that the citizens of our country have the right to enjoy when accessing the procedures that are held before the courts. At SELECTION OF JUDGES AND THE ROLE OF POLITICS 10 In this respect, Bordalí has pointed out that "The system could be greatly improved if the nomination, career and sanctioning of judges were carried out by means of absolutely regulated procedures, such as objective tests, in the case of the nomination or career of judges, o r by means of completely typified conduct in the case of disciplinary sanctions. But if the system were to move towards an objectification or regulation of the most important aspects of judicial organisation (appointment, career and disciplinary control), the question arises as to why entrust these tasks to courts of justice, such as the Supreme Court and the Courts of Appeal. The task of judicial governance described is much more akin to an administrative task and it is better that such tasks are carried out by such a body. This is the worldwide trend in Western countries that have introduced the system of the Council of the Judiciary. In general, all the countries around us reject that either a court of justice or the Minister of Justice directs or administers the judiciary" (Bordalí, 2014, pp. 70-71). However, in order to address this criticism, beyond t h e system adopted, be it the Judicial Council or the Appointments Council, what must be complemented by a series of probity measures of a preventive nature to prevent the abuse of the position of power held by its members, some of which have already been mentioned: term of office, non-re-eligibility, exclusive dedication, prohibition to apply for other positions for a period of time once their term on the Council has ended, declaration of assets, random drug testing, partial renewal of its members, obligation to register meetings (lobbying), among other measures. The model of separate autonomous bodies It was the Commission of Experts, part of the second constituent process initiated in Chile, which brought with it for the first time the idea of a system of autonomous, separate and "coordinated" bodies to carry out judicial governance, and not a "Council of the Judiciary". Article 157, paragraph 1 of the Commission's draft stated: "For the governance of the judiciary, there shall be autonomous bodies responsible for the appointment of its members, the exercise of disciplinary powers, the training and further training of judges and officials, and the management and administration of the judiciary. There shall be one body for each of them, which shall function separately and in a coordinated manner" (Experta, 2023, p. 88). The main argument in favour of this proposal lies in the advantage of fragmenting the various tasks of judicial governance, avoiding their concentration in a single body, with the consequent risk of political co-optation, as has been seen in comparative experience: "our proposal, taking into consideration the blunt questioning previously described to the Councils of Justice, proposes to establish in our country a deconcentrated system and with different autonomous bodies, independent from each other, for the exercise of the main non-jurisdictional functions, avoiding the consequences of excess of power and favouring expeditious entities that contribute to the support and improvement of the action of the courts, the only north of the nonjurisdictional tasks"(Programa Re- formas a la Justicia, 2024, p. 21). In this way, a system of mutual "checks and balances" naturally arises, since the bodies have a common addressee - t h e judges - and must coordinate in order to achieve their tasks, thus avoiding excesses and preventing co-optation. SELECTION OF JUDGES AND THE ROLE OF POLITICS 11 or total capture of these bodies, as has been the case with the experience of the councils of the judiciary. This figure was finally adopted by the draft submitted to the citizens for the plebiscite of 17 December 2023, although with notable changes, and was finally rejected: "In the final proposal, which significantly modified the one submitted by the Committee of Experts, the Judiciary is regulated, from article 155 to article 167. Those related to judicial organisation and governance are Articles 157, 159, 160, 161, 162, 162, 163, 165, 166 and 167. (...) Another weakness detected is the regression of the text proposed by the Constitutional Council with respect to the proposal of the Commission of Experts regarding the separation of disciplinary and jurisdictional functions.) Another weakness detected is the regression of the text proposed by the Constituent Council, with respect to the proposal of the Commission of Experts, in terms of the separation of disciplinary functions from jurisdictional ones, in contrast to the express recommendations of the United Nations Special Rapporteur on Judicial Independence, which in the report of García-Saya, notes that "several Special Rapporteurs have highlighted the decisive role played by judicial councils in guaranteeing the independence of the judiciary and have recommended that Member States consider establishing an independent body responsible for the selection and disciplinary regime of judges, and that they adopt appropriate measures to ensure that its composition is plural and balanced" (Henríquez, 2024, p. 13). 13). The main criticisms that have been levelled against it relate to the coordination problems that will occur given its fragmentation, thus undermining the effectiveness of the judicial system. On the other hand, it has been argued that a high fragmentation of power does not, as has been argued, guarantee greater protection against political capture or co-optation. It may even facilitate such infiltration by weakening the fragmented body. Gon- zalez argues in this regard that "the existence of 4 bodies plus a Coordinating Council may seem excessive for reasons of economy, effectiveness and efficiency and because I believe that the function of this Council should be more explicit than just "coordinating". Furthermore, smaller bodies, while allowing for greater sophistication in their functions, may also be more prone to corruption" (de los Ángeles González Coulon, 2023). In the meantime, a group of prominent academics have proposed moving towards the creation of an Appointments Council, but only for Supreme Court and Appeals Court Ministers and Judicial Prosecutors, casting serious doubt on the advisability of a change in the system of appointing judges of instance, a question they do not elaborate on, and only state that it is a "pragmatic" question. They state that "It was agreed to limit the work to ministers and judicial prosecutors of the Supreme Court and the courts of appeal. The reasons for this were purely pragmatic, so that this limitation should not be interpreted as conformity with the current appointment procedures for other judges (...) A comprehensive modification of the judiciary might be desirable. Such a modification, however, is not without risks and must be done carefully. The Chilean judiciary has high standards of independence and probity, which a comprehensive reform could compromise" (Aninat & Others, 2024, p. 2). Today, the bill presented by the Executive in Bulletin 17193-07 is along similar lines, although not as outlined by the commission of experts, it also proposes the creation of an appointments council, turning the Administrative Corporation of the Judiciary into an autonomous body supervised by the Comptroller General of the Republic, and a Judicial Prosecutor's Office. In order to make the system of judicial appointments more transparent and objective, a reform of the system is proposed in the following areas SELECTION OF JUDGES AND THE ROLE OF POLITICS 12 The following terms are set out below. This reform seeks to establish a specific system of appointments for judges and members of the primary scale of the Judiciary. (...) Secondly, the Judicial Prosecutor's Office is entrusted with the evaluation of conflicts of interest and is empowered to issue opinions for their management. (...) The creation of an autonomous body responsible for the administration and management of the resources of all the courts of the Nation is proposed" (de la República, 2024, pp. 22-25). The bill is currently before the Constitution, Legislation and Justice Committee of the Chamber of Deputies. Judges at the service of the public Everything that has been said so far is related to organic structures, which tend to set limits and guarantee independent judges, both internally and externally, to the citizenry. This is fundamental, for as Professor Al- dunate has pointed out, "despite being located in the chapter on constitutional rights, the way in which the guarantee of due process is configured informs the entire judicial system of a nation. In fact, it can be said that the one and only great guarantee of people in the face of the actions of justice is the guarantee of due process, which includes both requirements for the configuration of the judicial body as well as the procedure and the decision" (Aldunate, 2021, p. 580). But none of this precludes consideration of issues that are of a personal nature to the judges themselves, and which also affect their own internal and external independence. These questions are related to their moral convictions about the value of the democratic principle of the law, respect for the Constitution of the Republic, the firm conviction that cases must be resolved in accordance with these rules and not in accordance with their own opinions, even when there is great disagreement between them. Being a judge implies, in effect, developing in a certain sense, a very particular political activity, that of exercising jurisdiction, saying the law, and thereby assuming that one will responsibly follow only the law and the constitution to define the concrete case, thus affecting the life, property, freedom, work, family or fundamental rights of a person. Being a judge implies assuming an ethical duty, which places one at the service of the citizenry, but in a unique and very valuable position: that of an impartial, impartial and independent third party who resolves the conflicts that are placed at his or her disposal, because he or she is the last barrier that we have placed for ourselves as a civilised society, to solve our problems, renouncing private violence. Being aware of this ethical duty, of this responsibility and of its value, is the fundamental step that every judge must take in order to exercise his or her jurisdiction, whatever the scheme of judicial governance that we give ourselves, although it must be said, always within the margins of a democratic, republican and constitutional state, because it is doubtful to find judges who meet these characteristics in authoritarian, tyrannical or dictatorial states, and if there are any, they will surely be honoured as martyrs or persecuted. SELECTION OF JUDGES AND THE ROLE OF POLITICS 13 Conclusions Politics is not only about the paraphernalia that can be seen in presidential, parliamentary and mayoral elections. It is also the exercise of state power in its different spheres, and one of them is jurisdiction. Judges, therefore, are no strangers to this. On the other hand, a model for the selection of judges that is consistent with a democratic, republican and constitutional state must always consider a balance of power that prevents the access of undue influence in the selection of judges, and internal co-optation or corporatism, as both practices are a risk to judicial independence. However, the responsibility of each judge in the exercise of his or her functions should not be forgotten, even when sitting on a body such as the Council of the Judiciary or an Appointments Council. In all his or her work, his or her ethical behaviour, in strict compliance with the law and the constitution, is not only a guarantee for himself or herself and those around him or her, but also for the entire citizenry, since the faith that can be placed in these bureaucratic mechanisms also depends on his or her behaviour. References Afonso, O. (1993). Notas sobre el consejo superior de la magistratura en portugal - dialnet. Retrieved November 25, 2024, from https://dialnet.unirioja.es/servlet/articulo? codigo=2552559 Aldunate, E. (2021). Judicial power. In A. C. de Derecho Constitucional (Ed.), Tránsito constitucional: Camino a una nueva constitución. Tirant lo Blanch. Aninat, I., & others (2024, June). Propuesta para mejorar el sistema de nombramiento de jueces en chile. Atienza, M. (2024, November). Spanish jurist manuel atienza assures that mexico has ceased to be a state of law - indice político | mexico news, opinion, world. Retrieved November 25, 2024, from https://indicepolitico.com/el- jurista-espanol-manuel-atienzaasegura-que-mexico-ha-dejado-de-ser-un-estado- de-derecho/ Bordalí, A. (2014). Propuesta para un nuevo gobierno judicial en chile. Revista de Estudios de la Justicia, (21). Castagnola, A. (2023). The impossible consolidation of the magistrate's council in the Argentinean . Desarrollo Económico - Revista de Ciencias Sociales, 63(240). CEP (1991, January). Informe final sobre reformas al sistema judicial chileno : estudios públicos. Retrieved November 25, 2024, from https: //www.estudiospublicos.cl/ index.php/cep/article/view/1457 de Magistradas y Magistrados, A. N. (2023, October). Jurisdiction and the new constitution: The problem of the independence of judges. Retrieved November 25, 2024, from https://anmmchile.cl/wp-content/uploads/2023/05/Jurisdiccion-y-NuevaConstitution.pdf of the Republic, P. (2024, October). Constitutional reform modifying judicial governance and creating a judicial appointments council. Retrieved November 25, 2024, from http://www.senado.cl/appsenado/templates/tramitacion/index.php?boletin%5C_ ini=1719307 SELECTION OF JUDGES AND THE ROLE OF POLITICS 14 de los Ángeles González Coulon, M. (2023, August). Expert commission and judicial government. Retrieved November 25, 2024, from https://actualidadjuridica.doe.cl/comisionexperta-y-gobierno-judicial/ Edoardo, T. (2022). The government of judges. An Italian history. UNED. Constitutional Theory and Reality , (50). Eguiguren, F. (2001). El consejo nacional de la magistratura | derecho & sociedad. Derecho y Sociedad, (16). Experta, C. (2023, June). Anteproyecto de constitución política de la república de chile. Retrieved November 25, 2024, from https: //www .procesoconstitucional.cl /wpcontent / uploads / 2023 / 06 / Anteproyecto - Constitucion - Politica - Republica - de Chile.pdf Group of States Against Corruption, C. d. E. (2013, December). Preventing corruption with respect to parliamentarians, judges and prosecutors. Retrieved Novem- ber 25, 2024, from https : / / rm . coe . int / CoERMPublicCommonSearchServices / DisplayDCTMContent?documentId=09000016806ca049 Henríquez, S. (2021, May). Judge generation systems and their impact on the role of the judge. Retrieved November 25, 2024, from https://doi.org/10.5281/zenodo.14216913 Henríquez, S. (2022a, July). Integration of the council of justice in the proposal for the new political constitution of the republic of chile. Retrieved November 25, 2024, from https://doi.org/10.5281/zenodo.6869505 Henríquez, S. (2022b). Jueces y política: La integración de un consejo de la magistratura para chile, a la luz de las experiencias de perú, españa y argentina. In Estudios monográficos para una nueva constitución. Institute for Judicial Studies. Henríquez, S. (2024, April). La orgánica judicial en los procesos constituyentes de 2021 y 2023 en chile: Del consejo de la magistratura a la división de órganos. lecciones para el futuro. Retrieved November 25, 2024, from https://doi.org/10.5281/zenodo. 10802536 Herrera, M. (2021). La designación de jueces en ecuador: En búsqueda de una nueva legitimidad. Íconos - Revista de Ciencias Sociales, (72). Justice Reform Programme, D. U. (2024, August). Judicial governance, background and proposals. Retrieved November 25, 2024, from https://reformasalajusticia.uc.cl/ images/Gobierno%5C_Judicial%5C_-%5C_Propuesta.pdf Rebollar, Y., & Rosales, C. (2016). The European experience of the council of the judiciary as a governing body of the judiciary. Law School Journal, (40). Satterthwaite, M. (2024, August). Preliminary observations of the united nations special rapporteur on the independence of judges and lawyers. Retrieved November 25, 2024, from https://www.ohchr.org/sites/default/files/documents/issues/ ijudiciary/statements/20240809-eom-chile-sr-ijl-sp.pdf Taruffo, M. (2005). Judges and politics: From subordination to dialectics. Isonomia, (22).