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June 2, 2019

By Jaime Arellano Quintana
Executive Director, Justice Studies Center of the Americas (JSCA)

The situations of corruption in Latin American justice require that all OAS member states actively guarantee the autonomy, transparency, quality and responsibility of their judicial and criminal prosecution agencies. That guarantee takes the form of respect, protection and promotion of independence and the quality and responsibility of judges and prosecutors.

We believe that the current judicial appointment system in Chile does not favor judges’ independence. Furthermore, the structure of judicial government and the concept and design of the career established for the judiciary also generate obstacles to judicial independence and the quality of justice in the country.

Chile has undertaken profound, comprehensive changes in all of its justice systems (with only the civil system still pending). However, the old structures and logics of judicial government, the courts of appeal and the Supreme Court remain practically untouched. The system’s schizophrenia causes harm and sends contradictory messages: modern procedure designs, the use of oral and adversarial procedures, immediacy, ad hoc organization, professional management are present first instance cases and courts and –paradoxically- absent in the higher courts.

We must use a systemic approach to comprehensively reform judicial government, the profiles of the judiciary in all of its functions and hierarchies, recruitment and training of judges and the meaning and materialization of a judicial career.

Along these lines, the role of selecting, training and appointing judges should fall to a Judicial Appointments and Training Council that is separate from the Courts of Appeal and Supreme Court. Special attention should be paid to the design of this entity in regard to independence and technical capacity. There is therefore a need to adequately regulate the representation of the Executive and Legislative Branches, the judiciary and the legal world.

We also believe that ending the verticality of the judicial career favors judicial independence and the incorporation of knowledge and valuable experience in all spaces. There should also be greater mobility in the Supreme Court and a focus on initial and continuing training. Along with this, we favor an open judicial system that allows for the free incorporation of experienced attorneys from outside of the judiciary at every level. Canada is a successful example to be followed.

These are just some of the many aspects that Chile must address in order to make progress on judicial independence and quality. This comprehensive reform should also contribute to the prevention of situations of corruption like the one that is being investigated in Rancagua.

Chile is in time, but we have already passed the stage of signals and warnings. If we want to keep anti-ethical behaviors from becoming normalized (and admired) and prevent corruption, we must take strong actions to prevent, investigate, prosecute and sanction them. Chile must go further and, together with other countries, lead the reactivation of the Meetings of Ministers of Justice of the Americas (REMJA). In dialogue with the Summit of Judicial Branches, a regional meeting should be organized to discuss and agree upon an agenda and plan of action for the democratic regeneration of justice systems in Latin America.

The time is now.

Opinion article published in the newspaper El Mercurio (06/02/19, Section A2).



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