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111 TABLE 1: Judicial Councils in France, Italy, Portugal, and Spain Italy* France** Spain*** Portugal**** No. of members Presidency President of the republic President of the republic President of the Tribunal President of the Tribunal Supremo Supremo Ex officio members Number of Members from Outside the Judiciary Number of Members of the Judiciary, Elected or Appointed President of the Supreme Court of Cassation General prosecutor of the Court of Cassation 10 law professors or lawyers elected by Parliament with a qualified majority 20 Elected by their colleagues ( ) Minister of justice (as vice president) 3 appointed members: 1 by the president of the republic 1 by the president of the Chamber of Deputies 1 by the president of the Senate 7 elected members 1 judge of the Conseil d Etat elected by his colleagues 5 judges and 1 prosecutor elected by their colleagues 8 Jurists elected by Parliament 12 judges elected by Parliament 8 appointed members: 7 appointed by Parliament 1 appointed by the president of the republic 7 judges elected by their colleagues 1 judge appointed by the president of the republic *Consiglio Superiore della Magistratura - ( ) As judges and prosecutors belong to the same corps and as the council decides on matters concerning both judges and prosecutors, the active and passive electorate coincide. **Conseil Superieur de la Magistrature : Judges and prosecutors belong to the same corps but there are two different sections of the council, one for the judges and one for the prosecutors. The section here represented decides on matters related to the judges ***Consejo General del Poder Judicial. ****Conselho Superior da Magistradura. In addition, Portugal has also established a different council for prosecutors, i.e., the Conselho Superior do Ministerio Publico
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143 TABLE 2: The Role and Composition of Judicial Councils in Various Latin American Countries Country Judicial Council Composition Council Selected by Argentina* Bolivia Costa Rica Dominican Republic El Salvador Guatemala Paraguay 19 members: S.Ct. pres.; 4 judges; 8 legislators (4 from each chamber; 2 from the majority party and 2 from the 2 leading minority parties); 4 lawyers in federal practice, chosen by election; 1 member of the academic community; 1 executive delegate 5 members: S. Ct. pres. and 4 other members 5 members: 4 from the judiciary and 1 outside lawyer; S. Ct. president presides 7 members: President; president of Senate; opposition party senator; president of Chamber; opposition deputy; pres. of S. Ct.; another justice 6 members: 3 lawyers; 1 prof. from the law faculty of the Univ. of El Salvador and 1 from the private universities; 1 lawyer from the Public Ministry 5 members: Pres. of S. Ct., head of judiciary s Human Resources Unit, head of Training Unit, 1 rep. of judges; 1 rep. of appellate magistrates 8 members: 1 S. Ct. member; 1 rep. of exec.; 1 member of each legislative chamber; 2 lawyers; 1 prof. from the National University s Law Faculty; 1 from the private universities Judicial representatives are elected by federal judges; legislators are selected by the presidents of the two chambers, based on proposals from the different chambers Council s Role in Supreme Court Selection none Council s Role in Selection of Other Judges Selection of candidates for judgeships through meritbased public competition; preparation of lists of three candidates for executive selection Congress Nominates candidates Nominates candidates for lower courts Supreme Court None Merit-based selection, but S. Ct. not obliged to choose highest ranking Recruits and screens None candidates; appoints justices; can hold public hearings Legislature chooses from slates of 3 nominated by each sector represented Judge and magistrate to be elected in their respective assemblies Proposes candidates to the legislature, half must come from an election by lawyers associations To advise Congress of need to convoke Postulation Comm n for selection of S. Ct. and appellate magistrates Proposes slates of 3 for Senate appointment Proposes candidates on a merit basis; provides the Supreme Court slates of 3 candidates for its selection In charge of merit-based entry system; training unit evaluates candidates; successful completion of 6-mo. course makes candidates eligible to be named by S. Ct. Proposes slates of 3 for appointment as judges or prosecutors by Supreme Court Additional Council Responsibilities Administer judiciary s budget,* discipline of judges, initiate proceedings to remove judges, issue regulations on judicial organization and independence Administrative and disciplinary responsibility for the judiciary; runs training program Delegated responsibility for various administrative matters Periodic evaluations of judges; runs the Judicial Training School Names and removes head of inst l training unit; evalutes performances of judges and magistrates; defines policies of training unit This information refers to the council for the federal judiciary; Argentine has other councils for the judiciaries at the provincial level. The Supreme Court has not permitted the coun assume responsibility for budget administration.
144 TABLE 3: Responsibility for Nominating and Appointing Supreme Court and Lower Court Judges in 10 Latin American Countries Country Argentina Bolivia Chile Nominations for Supreme Court Justices Proposed by executive Judicial Council provides a list of candidates Supreme Court prepares list of 5 candidates Responsible for Appointing Supreme Court Justices President, with agreement of Senate Congress elects by 2/3 majority vote Minister of justice designates; Senate ratifies by 2/3 majority vote Nominations for lower court judges Judicial Council; juries to review qualifications; public competition Judicial Council Recruitment through Judicial Academy; lists of 3 candidates prepared by the immediate superior tribunal in judicial hierarchy Responsible for appointing lower court judges President, with agreement of Senate 2/3 vote of Supreme Court for superior district courts; superior district courts for lower court judges Ministry of Justice Costa Rica Legislature Judicial Council Supreme Court Anyone can propose; Judicial Council Supreme Court Dominican Judicial Council Republic El Salvador Guatemala screens Judicial Council (half of list to come from lawyers association election) Postulation commission prepares a list of 26 candidates Legislature by 2/3 majority vote Legislature selects 13 Judicial Council prepares lists of 3 candidates Judicial Council Supreme Court Supreme Court Honduras* Legislature Supreme Court Panama President nominates Ratified by Immediate superior legislature in judicial hierarchy Judicial Council Senate Judicial Council Supreme Court Paraguay proposes 3-candidate slates proposes 3-candidate slates *A constitutional reform ratified in 2001 establishes that a nominating board comprised of seven sectors must present Congress with a list of 45 candidates for nine positions on the Supreme Court. The first selection process with this new mechanism will take in January 2002.
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146 JUDICIAL INDEPENDENCE BOTH ACCOUNTABILITY Served by secure tenure and salary and self-administration of the judicial branch Served by prophylactic ethical and conflict-of-interest rules Served by methods of judicial selection, discipline and removal, and legislative oversight
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153 TABLE 4: Number of States with a Particular Judicial Selection Methods* in the 50 States, the District of Columbia, and Puerto Rico Supreme court Trial court, gen. juris. Trial court limited juris.*** Partisan election** Partisan election, then retention election** Non-partisan election** Nomination by governor (without commission) Nomination by governor from commission list, (usually with retention election) Selection by the legislature Selection by other judges (e.g., a higher court) Other (typically variations of methods) Data reflect the presence of more than one court in some categories in some states. * Most states impose formal age and education qualifications on their judges (Rottman, 1995, tables 5 and 7). ** Judges in states that use election methods often gain office initially by gubernatorial appointment to a vacant judgeship. In some states, it is traditional for judges who are sympathetic to the governor and contemplating retirement at the end of their terms to retire early to allow the governor to appoint a replacement who will then have the advantages of incumbency in the next election. *** In many states, there are two or three or more limited jurisdiction courts. Data here are for the most important of the courts.
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