Judicial reform as public policy
That the federal Judiciary and the Supreme Court of Justice do not work as they should is part of a diagnosis shared by multiple sectors. A first reason lies in the analogical anchoring of its structure, which the impact of the pandemic undressed with heartfelt crudeness. Another reason lies in the obsessive refusal to analyze the incorporation of the different technological alternatives offered by the Fourth Industrial Revolution. Also the inbred myth based on the fact that reforms can only come from the Judiciary itself (when Congress is the constitutional body in charge of designing them), together with the Freudian taboo that any proposal of these characteristics violates its independent existence. Finally, not realizing in the 21st century that, as Richard Susskind maintains, the administration of justice is a service and not a sacred physical place that is expressed in a “technical” language that no one understands.
The problem with the functioning of the Judiciary lies in an anachronistic system, not in those who make it up. It’s not a naming problem, it’s a system problem. Many individual judges generate positive results on a daily basis, but at the end of the day, it is the system that is terminally flawed.
If the Supreme Court of Justice does not work as it should, this does not respond to the current integration but to the system on which it acts; with another integration of five members it would work the same. An expanded court will not work better if the system is not changed, while the current composition could work better with another organic diagram incorporating technological innovation. For this reason, it is necessary to avoid falling into the trap proposed by the “malfunction fallacy”, which, based on an objective diagnosis, in reality, only tries to change the composition of a court to incorporate judges related to it. instead of modifying the entire system.
A serious judicial reform as a public policy based on sustainable political agreements must contemplate, with synchronous logic, from the moment that a person registers in a competition for the position of judge before the Council of the Magistrature until the moment that the Court Supreme Court issues a ruling in any cause (the “relevant public” or “every day”).
People individually or collectively hold the right to express themselves and to petition the authorities (including the Judiciary) in multiple senses without this being discussed from the constitutional perspective and from the radiating spectrum of human rights. This does not prevent a critical analysis of the meaning of the call for a march against the current composition of the Supreme Court and its effective contribution to improving the functioning of the Judiciary. In practical terms, this form of exercise of the right to protest does not imply any contribution to a moderately reasonable democratic deliberation since it continues to believe that the problem is the names and not the system. In constitutional terms, the path is wrong because the stability of the judges of the Supreme Court is granted by the Constitution and only through impeachment can they be removed. In political terms, it magnifies the irrationality of a “crack” that feeds the malfunctioning of the Judiciary, while legitimizing formalistic responses without concrete proposals for comprehensive reforms that, deep down and for various reasons, feel comfortable with the current operation of justice. In symbolic terms, the inbreeding of the Judiciary in the face of the challenge of transformation is even more abolished.
With march, reverse or requested we are not going to seriously take charge of the current dysfunctionality of the Judicial Power. Of course, those who do not want any reform on both sides of the “rift” for different reasons will be able to feel satisfied. We continue discussing names, places, “silly” formalisms, but never a substantial and comprehensive change in the justice system. This is how we are, this is how it goes.
Professor of constitutional law-UBA and UNLPam