Academic journal article The University of Memphis Law Review

Judicial Independence, Challenges, and Safeguards: Perspectives from Another Legal System

Academic journal article The University of Memphis Law Review

Judicial Independence, Challenges, and Safeguards: Perspectives from Another Legal System

Article excerpt

I am grateful for the invitation to participate in this event. Among my motivations for accepting this opportunity is the long-lasting friendship that our two countries have enjoyed, together with the fact that we share a history of respect for fundamental rights.

I have been asked to address the topic of judicial independence, and it must first be understood that my remarks relate to the historic development of a particular country, the Republic of Costa Rica. The country's Constitution of 1949, considered the founding document of our Second Republic, is based on a republican system of government with separation of powers.

The principle of the separation of powers, which is essential to a democratic state, can be seen as a mechanism of checks and balances designed to avoid the concentration of political power-as a safeguard against tyranny. An essential element of the system is the principle of respect for judicial authority and the prohibition on interference in its exercise: in brief, what is known as judicial independence.

Let me point to the constitutional provisions that define the scope of the Judicial Branch's powers and guarantee its functioning, beginning with the republican model and its classic division into three distinct and independent powers or branches, Legislative, Executive, and Judicial. Under our Constitution, the judicial power is exercised by the Supreme Court of Justice ("Supreme Court"), composed of twenty-two justices, and other, lower courts throughout the country. All judicial employees are under the authority of the Supreme Court. In addition, under our unique system, the Prosecutor's Office, the Office of the Public Defender, and the Judicial Police are all administered by the Supreme Court, a structural feature aimed at guaranteeing the independence of these entities.

I would like to emphasize that the Supreme Court, as ultimate judicial authority, has in its charge the governance and administration of the entire court system. Thus the scope of its attributions embraces judicial affairs in the strict sense, administrative matters, the budget, investments, defining the rules for hiring personnel, and others. In short, the Supreme Court has global administrative responsibility for the services provided by the court system in its entirety.

In its functioning, the Supreme Court is subject only to the Constitution and to the law. This is clearly set forth in the Constitution, which bars subjection to other branches of government or to internal or external interests.1 Financial independence is ensured by the constitutional guarantee that a minimum of 6 percent of the national budget's ordinary revenues be allotted to the judicial system.2 To prevent interference in the organization and operation of the judiciary, the Legislative Assembly must request the opinion of the Court regarding any bill that affects it and a supermajority vote is required for the Assembly to overrule the opinion issued by the Court.3

The Legislative Assembly, in its capacity as the representatives of the people, is responsible for the appointment of members of the Supreme Court. This occurs through a competitive public process and review of nominees' qualifications. The term of service for a justice is eight years, at the conclusion of which reelection to a like period is considered automatic unless a supermajority of two-thirds of the members of the Assembly decides to the contrary.4

Accompanying this framework of stability is a disciplinary regime guaranteeing that members of the Court cannot be dismissed except for such cause and following such procedures as are prescribed by law. The regime is applied by the Court itself. In the event that a justice's appointment is revoked, once the applicable procedure has been completed, the Court informs the Legislative Assembly, so that it can adopt the corresponding resolution.

These, then, are the key features of the constitutional structure that protects the Supreme Court, and the courts as a whole, from interference by other branches of government, and ensures its independence relative to finances and administration. …

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