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Currently, the judges and prosecutors of our country are elected, ratified and dismissed by the National Board of Justice (JNJ), an autonomous entity recognized by the Political Constitution. However, this selection system would not be adequate according to the presidential candidate of Free Peru, Pedro Castillo, who proposes to be elected by popular mandate.
Is a popular election of magistrates viable or adequate for the Peruvian justice system? El Comercio consulted with the former anti-corruption attorney Antonio Maldonado, the former supreme prosecutor Víctor Cubas Villanueva and the criminal lawyer Carlos Caro, who have warned that that mechanism would be counterproductive.
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On May 1, during the debate in Chota (Cajamarca) against his political opponent of Fuerza Popular Keiko Fujimori, Pedro Castillo referred to this proposal.
“The judges and prosecutors have to be elected by popular mandate, the new judges must be elected by popular mandate so that they do good justice in the country”Castillo said.
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The proposal that Castillo Terrones made has its origin in the ideology of the founder of Peru Libre, Vladimir Cerrón, which was presented as a Government Plan before the National Elections Jury.
Meanwhile, the so-called 17-page Bicentennial Plan – which has recently been presented by Pedro Castillo – does not raise anything about the justice sector.
Although Castillo, during the debate in Chota, spoke of “judges and prosecutors,” the guidelines of his proposal refer above all to reforming the Judiciary.
The ideology of Peru Libre indicates that of the three powers of the State, the PJ is the only one who “does not want to submit to the popular election”.
“The appointment of this power, which ultimately decides matters transcendent for the State, must pass the democratic filter and not be appointed by a small group of elected personalities related to the system or the country’s ruling class.”Indicates the proposal.
Also includes that the magistrates are not ratified, as it happens in the parliamentary re-election – they indicate – it would be “institutionalize corruption”.
In addition, it considers that this would lend itself to the benefit of judicial decisions, creation of criminal mafias, subjection to political power or media pressure, in many cases even sentencing innocents or releasing criminals in order to guarantee their permanence in office.
However, for the specialists consulted by El Comercio, far from contributing to strengthening the independence of the justice system, the popular election of judges and prosecutors would create a more intrinsic link with respect to dependence and submission to political power, among others. .
Would aggravate current deficiencies
Former anti-corruption attorney Antonio Maldonado explained that in the Peruvian tradition, it is possible to find, in an isolated manner, attempts to include popular election processes or establish popular juries.
The closest, he said, are the non-literate justices of the peace that currently exist. Although they do not go through a popular election, these authorities who are not lawyers chosen by the Supreme Court. For example, are a community leader or a person recognized for their age or seniority in their work.
Maldonado noted that the late United Nations Special Rapporteur, Leandro Despouy, prepared a report on the system for electing judges in the world and concluded that “The systems of election of judges; whether by political or popular election or through Congress, they were the most vulnerable “ to be injured in their fundamental principles of independence and impartiality.
In that context -he warned- Peru is far from having a sufficiently strong judicial system and, at the same time, with a cohesive society around certain national values.
“Therefore, incorporating a system of popular judges or the election of judges by popular election would be very delicate in our legal system and would only pose an additional risk to what, unfortunately, the justice system in Peru already faces “exclaimed the ex-attorney.
Along these lines, he considered that judges should not be political, but independent and, therefore, to be elected by a professional establishment not subject to political manipulation.
“There is no strong judicial institution, nor is there a sufficiently mature society, and this is demonstrated in the current electoral contest. But it is also demonstrated in the effects of the Los Cuellos Blancos del Puerto case that, as we have said, it is the tip of the iceberg because the case is more complex “, Held.
He considered that Peru has a serious problem, beyond the justice system, linked to the legal system; enormous complexity that is expressed by a label of “Weakness of the legal conscience of Peruvian society”.
“Judicial reform is an institutional task bodies such as the National Board of Justice, Congress, the Executive, but there is also a task for everyone”, He concluded.
He is irresponsible and shows ignorance
The former supreme prosecutor Víctor Cubas Villanueva, agrees with Maldonado. The former member of the Public Ministry argued that the type of election proposed for judges and prosecutors, not bad per se. Is it would work in countries where democracy is consolidated and the legal order is solid.
“In my opinion, this proposal will not work in a country like ours, where democracy is not solid (…) where our institutions are very weak; so raising that as a solution is worse than the disease”Warned Cubas Villanueva.
He explained that the selection by popular election, in our country, has a series of defects that “it would result in having judges and prosecutors “ as you now have parliamentarians, “Who do not understand what their work is” or as mayors who do not know what their role is and increase acts of corruption, abuse of power or embezzlement. He added that this is due to ignorance regarding the exercise of the function.
“The same panorama would arise if it were decided that judges and prosecutors were elected by popular vote.”, He questioned.
The former supreme magistrate recalled that the Constituent Assembly -which approved the 1979 Constitution- and that in his opinion was made up of people who knew about the justice system- proposed the election of magistrates by a technical and non-political body, because in this way it consolidated its independence and impartiality.
That institution, Cubas Villanueva indicated, was called the National Council of the Magistracy (CNM), which functioned in acceptable terms, but due to the high levels of corruption it was contaminated, disfigured and turned into an entity that served the interests of the organizations. criminals. Today, it has been reorganized and reinstated as the National Board of Justice (JNJ).
Another aspect to consider, the former supreme prosecutor mentioned, is that the election by popular vote of magistrates in Latin America has not worked.
“Making a political statement of this type, at this time, for the situation in Peru, is irresponsible and shows ignorance of how the system of the administration of justice in our country works”, lamented the former prosecutor.
For this reason, he considered that in the country, the selection mechanisms must be refined and perfected so that judges and prosecutors are professionals with the highest legal training and with the premise of serving society.
“What is essential in a judge, which is independence and impartiality, would be lost. In our country, an accusatory procedural system (New Criminal Procedure Code) is about to be implemented, which in essence reinforces the independence of judges and prosecutors. Both must be and can only be subject to the Constitution and constitutional law “, Held.
The judiciary would become politicized
Criminal lawyer Carlos Caro, argued that having a system by popular election is legally unfeasible and would imply a constitutional reform.
Regarding whether or not it is convenient to do it in the future, the criminal lawyer said he disagreed. He recalled that in Peru the “Romano-Germanic” system is applied, as is the case in Europe and Latin America in general, where the election of judges is through neutral instances of political power.
He explained that, in The United States, for example, operates a popular election system but only for district attorneys, which is even the lowest level..
“So what can it mean for judges to be elected by popular election is that the candidate or judge will have to campaign as they do in an electoral campaign. That does not guarantee that the best will arrive, on the contrary, you are going to politicize the Judiciary. That side is absolutely inconvenient “, I note.
In that sense, he considered that the most appropriate thing is to strengthen the work that the National Board of Justice (JNJ) has been doing, which is an entity that has constitutional roots.
“It is precisely because of the Los Cuellos Blancos del Puerto case that the National Council of the Magistracy was eliminated and the National Board of Justice was created, which underwent constitutional reform and is beginning to function. They have suspended judges, they have removed supreme judges and prosecutors. They are doing their job “, he claimed.
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