u The World Bank > L i , l 2 00 1 _I ___ nocesNUMBER 54 PUBLIC SECTOR Goveming the justice system: Spain's judicial council Following the European model, many developing and transition economies have established councils independent of other govemment branches to govem their judiciaries. Spain's experience illustrates the issues raised by the creation and operation of these entities. Like any public organization, the judiciary judicial membership is merely symbolic. The Judicial councils help must be well-managed if it is to deliver its Spanish solution represents a compromise. product swiftly and efficiently. But the prod- Of the 20 members, the Constitution spec- prevent judicial uct of the judiciary is the just resolution of ifies that 12 are to be judges. The other 8 disputes, which demands thatit operate free are attorneys or other jurists. This setup management from of pressure from other branches of govern- ensures that the concerns of the judiciary ment. To preventjudicial management from are heard, but not to the exclusion of those compromising becoming a means for compromising judi- outside the corps ofjudges. cial independence, manycountries have cre- The Constitution requires that the 8 judicial atedjudicial councils-bodies separate from members from outside the judiciary be other government branches and entrusted appointed by a three-fifths majority of Par- independence with selecting and promoting judges and liament. But it is silent on how the 12 rep- otherwise managing the court system. resentatives of the judiciary are to be Although these councils differ by coun- selected. At first these 12 were elected by try, their success depends on how well pol- judges, but in 1985 Parliament assumed icymakers address questions about their responsibility for selecting the entire coun- composition, the selection of their mem- cil. Since then, 10 members have been cho- bers, their responsibilities, and their sen by the Congress of Deputies and 10 by accountability. Spain's experience with its the Senate. A three-fifths majority is required Consejo General del Poder Judicial shows in each case. how one nation has dealt with these issues The change from election by judges to and reveals the factors that must be taken selection by Parliament was adopted only after into account when addressing them. intense debate. The socialist majority sup- ported the arrangement, while the conserv- Composition and selection of ative opposition voted against it. Since 1985 members the issue has been a major point of contention Spain's Constitution states that the council between Spain's diverse political camps, and is to consist of the president of the Supreme various arguments have been advanced for Court, who presides over it, plus 20 indi- and against the different methods for choos- viduals, each of whom serves for five years. ing the members from the judiciary. In some countries all council members are Opponents of election byjudges cite two sitting judges, while in others sitting judges drawbacks. First, an electoral process in are in the minority-and in some instances which both judges and their associations FROM THE DEVELOPMENT ECONOMICS VICE PRESIDENCY AND POVERTY REDUCTION AND ECONOMIC MANAGEMENT NETWORK play key roles can spark ideological con- to amend the law governing the council frontations within the judiciary-as hap- before an interparty consensus has emerged, pened in the 1980 elections. Although the result has been public controversy- Spanish judges may not belong to political undermining the council's authority and parties, they can join judicial associations. legitimacy. Such associations are legally independent A second conclusion is that if the pre- of the parties, but they do reflect ideologi- ferred option is to have Parliament select cal leanings. Those who oppose electing the the judicial members of the council, parti- judicial members argue that elections inject san considerations must be reduced to a partisan tensions into the judiciary, to the minimum. Accordingly, it is essential that detriment of both the cohesion of the judi- the election process not reflect any jockey- ciary and the judiciary's public image. ing for power on the part of majority and There is no single A second criticism ofjudicial elections is minority parties. Rather, the various Par- that, if council members are chosen by other liamentary groups must reach consensus on right answer to judges, they will tend to emphasize the inter- candidates of recognized standing. This can ests of those who elected them. This fear of be accomplished not only by requiring the question of corporatist behavior is not limited to Spain. larger majorities when it comes time to vote, It was behind a recent proposal in France but also by having an interparty commission how to select that only a minority of that nation's coun- propose candidates (as happened in Spain cil be drawn from members of the judiciary. in 1996) or by allowing associations ofjudges council members But serious objections have also been or other legal professionals to play a role lodged against the current practice of hav- during the proposal phase. In that regard, ing the Spanish Parliament elect the entire in May, 2001, the Spanish government and council. The main criticism is that this the principal opposition parties reached a method enables political parties to divide compromise agreement whereby the twelve the council seats among them. The fear is judicial members of the Council will be that the ideological composition of the coun- elected by Parliament from a list of 36 can- cil might simply reflect the prevailing pat- didates nominated by the judges' associa- tern of party representation in Parliament. tions or by groups ofjudges. If that were to happen, critics assert, not only One practical question that must be would it undermine the council's image as addressed is the amount of time council mem- a nonpartisan body, it would also enable par- bers should spend on council business. Span- ties to influence the judiciary. Council ish policymakers decided that council decisions-which affect the selection, pro- members should devote themselves solely motion, and monitoring ofjudges-would to council activities, to the exclusion of other then reflect the party leanings of council professional endeavors. This approach has members, seriously undermining the inde- been criticized on the grounds that the vol- pendence of the judiciary. ume of work does not justify having 20 full- While the experience in Spain and else- time members and a president. Because the where suggests that there is no single right number of members is set by the Constitu- answer to the question of how to select coun- tion, one suggestion under consideration is cil members, it does point to several con- that only some members (acting as a stand- siderations that any solution should reflect. ing committee) be full-time. The remain- First, if, as in Spain, the Constitution allows ing members would then balance their lawmakers a broad latitude when deciding council responsibilities with their professional how members are to be elected, the method activities. adopted-whether Parliamentary selection, election byjudges, or some other option- Functions of the council should be determined by agreement In Spain, as in other European countries, between the majority and the opposition. the task of managing the administrative In Spain whenever an effort has been made aspects of the judicial system was historically PREMNOTE 54 JUNE 2001 entrusted to the executive branch of gov- to coordinate the work of the council and ernment, most often the Ministry ofJustice. the executive branch led in 1996 to the The executive would select judges, deter- establishment ofjoint council-government mine their administrative status, and disci- commissions at both the national and pline them. When Spain established its regional levels. judicial council, it had to divide responsi- The council has no legislative power, bility for these organizational matters although it can develop rules to implement between the council and the executive. provisions relating to the governance of the Because the Constitution specifies only the judiciary. It must also cooperate with Par- core functions of the council-appointment, liament. The council must report its views, promotion, inspection, and discipline of which are nonbinding, on legislation the judges-it has been up to Parliament to leg- government intends to send to Parliament islate on the subject. Over the years various on issues affecting thejudiciary and the pro- Iin Spain nearly all measures have extended the council's duties tection of fundamental rights. The coun- tocovernearlyallorganizationalmattersper- cil's report must accompany whatever matters pertaining taining to the judiciary. The council orga- legislation on these issues the government nizes the selection process for judges by transmits to Parliament. Parliament may to judges have been holding public examinations, manages the also ask the council to provide reports or Judicial School, makes decisions on promo- opinions on any matter it wishes. Although given to the council tions and transfers, grants licenses, and estab- the council has no formal power to initi- lishes judges' workloads. The council also ate legislation, it can send policymakers pro- provides judicial inspection services and posals and suggestions, something it does imposes disciplinary sanctions, either in ple- fairly regularly. In 1997 it prepared a white nary session or through its Disciplinary paper on justice that contained proposals Committee. for reforming and streamlining the judi- Many tasks nevertheless remain the ciary, and in 2000 it issued proposals for responsibility of the executive branch, par- judicial reform. ticularly those pertaining to court admin- istrative personnel and management of Oversight and responsibility buildings and office resources. For efficiency The council is not a court. Its tasks are man- reasons, the executive branch even con- agerial and administrative. In accordance tinues to handle some matters directly affect- with the law, it develops and implements ing judges, such as salary and pension policies relating specifically to the organi- administration. zation of the judiciary. Thus it is responsi- Experience suggests that it is better to ble for providing guidance and direction, entrust to the executive branch functions a situation that can eventually yield erro- that a large collegiate governing body such neous policies or policies that appear to run as the council would find it difficult to dis- counter to the orderly functioning of the charge efficiently. Experience has also justice system. What is more, because the revealed problems arising when different council is responsible for implementing leg- government agencies have overlapping islation governing the judiciary, it is possi- responsibilities. Two approaches have been ble that its actions could contravene such followed. On the one hand, over time nearly legislation. Accordingly, the question of the all matters pertaining to judges have been council's responsibility arises: political given to the council, gradually eliminating responsibility for mistaken guidance it may executive branch involvement. TheJudicial provide and legal responsibility for viola- School and the selection process forjudges tions of law. were both transferred to the council in 1994. With regard to political responsibility, the The council recently proposed that it be Constitution and the law rule out removal given authority over the Judicial Benefit from office in the event of legislative censure, Society as well. On the other hand, the need an otherwise typical tool parliamentary sys- PREMNOTE 54 JUNE 2001 tems apply in such cases. This was done de la Magistratura: cuestiones selec- because of the desire to guarantee the inde- cionadas desde una perspectiva com- pendence of the council members, who can parada." In Minsterio de Justicia de la be removed from office only if they have com- Nacion, Jornadas Internacionales Sobre el mitted a specific act prohibited by law. Even Consejo de la Magistratura. Buenos Aires. so, the council is subject to parliamentary Fix-Zamudio, Hector, and Hector Fix-Fierro. control. It is obliged by law to submit to Par- 1995. El Consejo de laJudicatura. Mexico liament an annual report on its work, along City Instituto de InvestigacionesJurididicas with recommended measures and require- de Universidad Nacional Aut6noma de ments. The usual procedure is for the presi- Mexico. [http://wwwjuridicas.unam.mx/ dent of the council to appear before the publica/justicia/]. Justice Committee of the two houses of Par- L6pez Guerra, Luis. 1997. "Modelos de gob- Spain s council liament. Either house can also ask council ierno de losjueces." Parlamentoy Consti- members to appear before them or their com- tuci6n 1: 11-32. is subject to mittees. And as noted, Parliament can require Lucas Murillo, Pablo. 1995. "El gobierno the council to report on its activities. Accord- del poder judicial: los modelos y el caso parliamentary ingly, although the council does not, strictly Espafiol." Revista de las Cortes Generales 35: speaking, bear political responsibility, it is 167-239. control accountable to the public for its actions. Renoux, Thierry. 1999. Les conseils superieurs The council's administrative actions can de la magistrature en Europe. Paris: Groupe be reviewed by the administrative cham- d'Etudes et de Recherches sur lajustice ber of the Supreme Court. This is in accor- Constitutionnelle. dance with Spanish law, which provides that Terol Becerra, ManuelJ. 1990. El Consejo every public administrative body is subject General del PoderJudiciaL Madrid: Centro tojudicial control. But this situation is not de Estudios Constitucionales. without critics, who argue that as a result a court can review the actions of the body This note was written by Luis L6pez Guerra responsible for governing judges. (Catedrdtico, Universidad Carlos III, Madrid; Vice President, Consejo General del Poder Further reading Judicial). Descard, Marie-Paule, and others. 1998. "Les Ifyou are interested in similar topics, consider SCM et la democratie." Le Monde, 9 joining the Legal Institutions Thematic Group. November. Contact Geoffrey Shepherd (x31912) orRichard Di Federico, Giuseppe. 1999. "El Consejo Messick (x8 7942) or visit http://www.world This note series is intended to summarize good practice and key policy find- "[|||| ings on PREM-related topics. The views expressed in these notes are those of the authors and do not necessarily reflect the views of the World Bank. PREM- notes are distributed widely to Bank staff and are also available on the PREM website (http://prem). If you are interested in writing a PREMnote, email your idea to Sarah Nedolast. For additional copies of this PREMnote please contact W MEadkowmiWOMaE the PREM Advisory Service at x87736. Prepared for World Bank staff