SECOND PLENARY SESSION: Corruption

Madam Chief Justice, Justice Cecilia Sosa Gómez, Chief Justice of the Supreme Court of Justice of Venezuela. The Chief Justices or representatives of the Chief Justices of nineteen Supreme Court or Tribunals of Justice, are attending this II Plenary Ibero-American Summit of Chief Justices of Supreme Courts of Justice.

Justice Cecilia Sosa Gómez

Mr. Secretary General, please make the announcement of the topic of this session and of the specific objectives we bring forward.

Secretary General

Specific objective. The criteria in the matter of corruption will be reviewed in order to adopt the Code of Ethics of the Ibero-American Judicial Civil Servant, also, there will be a Court constituted to enact a mock trial, which will serve to extract ideas that will allow justices to manage and apply the international instruments in this matter. Beginning of the session.

Justice Cecilia Sosa Gómez

This session actually has two parts, the first one, before the break, will look for criteria that will allow us to have, at an Ibero-American level, a Code of Ethics of the Judicial Civil Servant; for this, in the first place we have the presentation of Justice Jorge Subero Isa, Chief Justice of the Supreme Court of Justice of the Dominican Republic. A discussion will follow, and we will also address some of the work guidelines from the document corresponding to this second plenary session, particularly to see whether we can determine some of the ruling principles of this Code of Ethics of the Judicial Civil Servant in Ibero-America.

Justice Jorge Subero, Chief Justice of the Supreme Court of Justice of the Dominican Republic will have the floor for approximately ten to fifteen minutes.

Justice Jorge Subero Isa

Thank you, Honorable Chief Justice. In this morning’s first plenary session, we addressed the budgetary matter in Justice; we discussed the importance of management capability, this topic being linked to the one I will address today, because, from the moment there is bad management, corruption in Justice will be lurking around the corner. This is the reason why budgetary management must be transparent.

We are at the threshold of a new century and a new millenium. A vortex of multiple changes is progressively and rapidly transforming mankind, to the point of making us aware, that we are witnessing a true historic mutation stemming from the current qualitative leap in the sciences, technology, communications, transportation and economic dynamism. Many people say we are not witnessing an era of changes, but a change of era, where all nations are becoming a planetary village, making us co-responsible of the collective destiny of mankind, and of our species with the other living creatures interacting among themselves.

We are undoubtedly witnessing the formation of a new world order with characteristics of universal unification, called by many "globalization", the latter being an phenomenon of integration, not only for international economies, but also for the political and cultural dynamics of all the people of the Earth. But we can increasingly clearly see that this socio-historical dynamism we are witnessing, has shades of ambiguity, with a bifacial face, like Janus’ in Latin mythology. Even though it can foster mechanisms of integration, unification and solidarity, it can also unleash powerful mechanisms of exclusion, disintegration, separation and destruction.

Globalization comes before our eyes like a box of virtues and like Pandora’s box; the latter, being capable of even disjointing life’s permanence on the Planet.

Therefore, we are facing a great dilemma. We can move forward towards an excluding-type of globalization, a generator of death, or towards a

life-building-type of globalization. This dramatic situation experienced today by mankind, has raised the need for an ethical resurgence, for a global moral statement, to constructively guide this dynamism and transform it in forces at the service of Life.

Here is the vital context in front of which emerges today a great urgency, able to positively guide this irreversible process we call globalization. Within the framework of this challenge to human society as a whole, I would to present the following ethical proposal for the judicial sector.

There is a consensus among social scientists, in the sense that no other period in the history of mankind, has witnessed such a hasty process of change, like the one of the latter years. These have been profound, somewhat unpredictable in their development, thus difficult to live with, understand, and manage.

We are facing what has been called a generalized crisis, a crisis in Civilization and culture, specifically a crisis in the culture of Modernity. The planetary social crisis, has resulted in a crisis in the models of comprehension developed by science, for the interpretation of social phenomena. This has been called a crisis of paradigms. But, in the middle of all this darkness, and the rapidity of the changes, something new is outcropping like a priority requirement for social dynamics. A new paradigm needs to be found. It needs to guarantee the building of life, population, and the people of the whole Planet, and it seems to become more clear, every day, that this social paradigm is articulated by the integration of three dimensions, accountable for building life, namely, the triple challenge based on the conjunction of human rights, democracy and development. Human rights, as they are broadly understood, include political, economic, social, cultural rights, even the so-called emerging rights such as gender, ethnicity, environment, etc.

Democracy, not understood as restrictive, but participative of the whole civil society, and development, understood as unifying and solidary, capable of efficiently answering to the principal needs of mankind, without destroying the natural home that gives shelter to our environment. We consider that this new social paradigm, based on the triple challenge of human rights, democracy and development, to allow the building of life among all the peoples, is demanding from the judicial sector, a profound axiological restatement.

To address values is something currently fashionable. Mankind’s urgent needs and its current dynamics, have made it so. At the threshold of the new Millenium, society as whole has begun to look into the human being, worrying about the values that supposedly must accompany him/her; but it also looks into the institutions which form it, in order to permeate it with a new ethical countenance, that will allow answers that are coherent and provide examples in this social crisis, but also in the threshold of a new order being built.

If human rights are a first challenge for the building of life, we believe that the judicial systems of each of our countries, are called to generate inside themselves a profound transformation which will make them be effectively responsible for said rights; but this will only be possible, if the judicial machine manages to purify itself from petty corruption, and come before the people with transparency and coherency, and with the well deserved authority to sanction, and to guarantee human rights.

There is a consensus that the transformation of justice is a priority and an unpostponable need, as a mean of consolidating the Rule of Law aspired by our people; we must show a more efficient type of justice, more effective, more accessible, more transparent, with fewer levels of impunity and wounding of the human rights, and with increased awareness of its own problems and its role in society, as a security factor and of social harmony.

The reforms, renovation and modernization of our judicial systems bring forward the urgent need to create a Code of Ethics to regulate the actions of the judicial sector. In order to address the project of a Code of Judicial Ethics for the whole of Ibero-America, it is important to start from the concept of the true meaning of ethics. To discuss it, at a time where lack of ethics seems to rule, could seem preposterous. There is the general belief that it is not part of the collective thought, remaining instead in the realm of the nostalgic, and of the suffering of those ascribed to its principles, specially if we are referring to the public functions.

The word "ethics" is truly important, and its own definition gives us a common starting point for the existence of a Code of Ethics for the whole of Ibero-America. It reflects the moral principles ruling the behavior of the human being. This is not the exclusive property of certain professional groups or class of people. These principles, resorting to the goodwill of the people, are universal. They are necessary for the enjoyment of an orderly and peaceful life, and have been historically recognized since man began to live in a society. They may evolve with time, and be different in different countries, but the fundamental principles of behavior will always be the same. What goes against the principles of morality for any human being, will also apply if this human being is a judge or a judicial civil servant, but a human being never stops been one if he/she strays from these principles; he/she may be sanctioned in different degrees for it, but he/she still is a part of society. The judge or civil servant who strays from these principles must be sanctioned, but the seriousness of his/her misdeed may lead to the loss of his/her position. As the arbiter designated by society to judge the conduct, he/she must be seen as a human being free of faults. This not only means to be good, but also to seem good, thus the importance of establishing rules of conduct, which will honor the integrity and independence of his/her function, and stimulate respect and trust in the judicature. The main objective of any Code of Ethics is trying to maintain an optimum level of excellence and correctness in the behavior of its officers, employees and justices of the Judiciary, gathering in a single body the rules of ethical principles that must rule the exercise of their functions.

Notwithstanding that the topic implies the establishment of parameters of exercise for the judicial public servant, starting with the analysis of the appropriate legislation of Ibero-American countries, the poor information I received, along with the delays in their delivery, limits me to make a general presentation, without a comparative study of the different internal legislations.

Based on the above, and advocating the creation of the Code of Ethics of the Ibero-American Judicial Civil Servant, I will propose the adoption of some criteria whose structure contains elements which are common in our internal legislations, or with our basic ethic principles. These could be the foundation for this Code of Ethics.

1. Honesty. The judicial civil servant must always abide by correctness, honesty, integrity of thought and action, always avoiding the abuse of power and corruption.

2. Independence and impartiality. The judicial civil servant must be as independent as possible, following the Law and his/her own conscience, not accepting mandates or instructions from anyone, if there is a reason who justifies and explains its existence, it is its actions as an impartial third party who declares void the juridical conflicts, in the measure that this requirement is lost, one loses the spirit of de judicial function. It is obvious that the good civil servant, as expected by our society, or by any society, is the one who integrates one power and who fulfills his function, no to be at the service of odd interests requiring the solution of cases; this is, of course, an obvious requirement, but one must underline the firmness with which our society demands this, therefore we must be concerned with being independent and impartial.

3. Personal benefit. Not receiving any improper personal benefit, nor imposing special conditions leading to the performance of an action inherent to its functions.

4. Transparency. The judicial civil servant must document all actions of his exercise as well as publicizing them, thus guaranteeing their transparency.

5. Efficiency. The judicial civil servant must provide good preparation and efficiency. He/she has the obligation to research and study the law and any other discipline which may improve his human and technical formation. He/she must have clear juridical capability in the motives behind the sentencing.

6. Gifts. Should not receive gifts, presents, donations in the form of objects or services related to the exercise of his/her functions.

7. Wisdom. This is necessary in the exercise of the judicial function, meaning that the judicial civil servant should act without haste, and with a serene sense of judgment in the exercise of the functions he/she is in charge.

8. Political sense. The civil servant cannot be prejudiced and assume a hostile attitude towards the other powers, forgetting the fact that he/she is not there to create obstacles, aggravate or favor said powers, but instead, to control them, in order to keep them within the boundaries of the Law, and to sanction their excesses. The key is to never lose control.

9. Democratic awareness. The civil servant always has to think about his function, as being a service provided to society, and performed in its name. He/she must accept that he/she is society’s servant and as such, in under the obligation to provide requested information (wisely and legally) to the citizens, so they are aware that the requested assignment has been accomplished.

10. Institutional awareness. The civil servant must have and assume an open attitude of communication with his/her peers, and avoid isolation and solitude, pretending that he/she is the center of the universe. Institutional awareness requires collective work, with no room for individual stardom, where failures and successes are collective, thus triggering a form of co-responsibility, that goes beyond the rest of power.

11. Social Insertion. The judicial civil servant must be able to project common links or spaces with social institutions facing specific realities. It is important to learn about the social factors of intermediate associations, in order to listen to their versions or balances of the Judiciary.

12. Awareness of the Law. The civil servant must correctly apply the Constitution, current Laws and international treaties. As far as the Constitution, it is important to establish the obligation to have a constitutional awareness.

13. To overcome juricist perspectives. To pretend that the Law can only be explain from the perspective of the Law, and that there is no need to link it to economics, society, morals, culture, etc.

14. Subjection to the established regulations. The civil servant will incur in disciplinary fault, should he/she fail to comply with established work duties and regulations, incorrectly exercise a report derived to rights and prerogatives, ignore legitimate orders from superiors, or incur in any of the causes for disciplinary sanctions coming from the appropriate authorities.

15. Protection of public property. Not using public facilities and services for personal benefit, friends or people not belonging to the public function, as well as protecting and preserving all property belonging to the Government, and only use it when authorized. Not using information obtained while performing duties, for the performance of activities not related to official duties.

16. Judicial responsibility. The civil servant must answer for all his/her actions or lack of actions, and after proper knowledge of the above, will probably not incur in breaches of responsibility; responsibility is one of the fundamental elements of professional ethics.

17. Private life. The judicial civil servant must reflect in his/her private life, what he/she practices at work Private life must be lived in accordance with the established moral principles.

18. Discretion. The judicial civil servant must keep discretion in reference to the matters handled, until they reach the stage of the decision, which will subsequently be publicized. Special care must be taken in the protection and use of information on the lives of many people, which only must be disclosed for the compliance of the needs of justice. Any other kind of disclosure of said information is totally inappropriate.

19. Incompatible positions. The official should not accept positions or missions that are incompatible with his judicial responsibilities. Similarly, he should not assume obligations or commitments or perform functions that could obstruct the adequate performance of his legal tasks. He should avoid all activity which takes away from the dignity of his position or which might give rise to undesirable notoriety. His involvement in private work or entities should be limited to activities that do not take time from his judicial functions or run the risk of damaging the image of impartiality and sobriety which give the judiciary its high standing.

20. Declaration of assets. As a way of overseeing the patrimonial behavior of the judicial official, a sworn statement of his assets and liabilities is required.

21. Suitability. The suitability of the judicial official becomes manifest when he performs the functions entrusted to him with interest, equanimity, dedication, efficiency, honesty, impartiality, and diligence, observing good behavior and avoiding the commission of disciplinary infringements.

22. Privileges. To avoid privileges and discriminations due to political affiliation, religion, race, sex, kinship and other criteria which go against human rights and/or personal merit.

The criteria presented above constitute the basic points which will be used for the discussion of the aforementioned code, with the proviso that each point may be broken down and, consequently, form part of a different structure.

The proposal to draft a code of ethics for officials in the judicial sector is an instrument which will tend to ensure the transparency of judicial subjects and actions and protect public confidence in the administration of justice, with equity and efficiency for all citizens.

Ibero-America should remain free of corrupt judges. Let us feel proud of our judiciary. Let us double our efforts so that, being human, we will be able to overcome the weaknesses of that condition. And by seriously studying the behavioral norms which govern us, let us continue being, for the honor of our peoples, an exemplary judiciary. Thank you.

Madam Chairman

We open the debate on the presentation given by Chief Justice Jorge Subero Isa of the Dominican Republic. The next Mexico, Spain and Panama

Mexico

Thank you, Mme. President. Distinguished magistrates, chief justices of the Supreme Courts of Justice of your respective countries.

I was very pleased to hear the presentation made by the Chief Justice representing the Dominican Republic. I heard a significant inventory of the behavioral virtues which must form part of the obligations, and we are speaking of an ethics of obligations for all judges. Nonetheless, I think that we must recognize that legal ethics topics are generally addressed from very different viewpoints and frequently without achieving an integration of angles or appreciations. Philosophical theories generally pay very little attention to the practice, and the practice does not show any concern for the ethical framework.

It is necessary to approach the issue of judicial ethics with a clear commitment to reality and recognizing dominant practices, but without neglecting the theoretical aspects which serve as a basis for ethical codes and propitiate their practical meaning and, above all, their effectiveness.

The presentation of the problems must be committed to reality, beginning with an awareness of their importance to people and societies. Although a lot has been said about the situation of jurisdiction in Latin America, it is necessary to refer briefly to this topic. This is due to the fact the effective ethics are committed to the concrete circumstance in which they will be applied and, consequently, can only be explained or projected in relation to their corresponding reality.

Given the fact that the constitutions, ordinary laws and positive law, in general, impose moral duties on the judges, one could think that an ethics code would not be necessary and could become a source of contradictions. I do not feel that way. I believe that despite the fact that laws and jurisprudence establish certain ethical criteria for judges, there are deontological aspects which are not found in those norms which could be the subject of judicial ethics codes. Jurisdiction may not be seen as a mechanical or automatic function; it involves technical elements but these do not exhaust the topic, since it requires the justification of interpretation and integration criteria which are determining factors of the content of decisions, and are not the subject of sufficient legal regulations.

This prudential function of the judges exacts the justificatory reasoning of a commitment with social and juridical values. In my opinion, ethical codes should not be viewed as excluding solutions nor main solutions. Also, codes should not be promoted without first having reasonable certainty that they will contribute to improving the attention paid to issues that effectively affect jurisdiction. Consequently, it is necessary to have a clear definition of objectives and instruments and to value the role of a code of ethics within an integral strategy.

In addition, it is necessary to find incentives or sanctions which will confer actual and long-term effectiveness to an ethical code. The main problem with the codes of professional ethics in Latin America is their inapplicability. For this reason, it makes no sense to design the contents of a code of ethics without first having a diagnosis of the causes of its ineffectiveness and a plausible idea that the measures which must be taken will make it have a bearing on the performance of jurisdictional entities.

I would like to point out a frequent problem: the pragmatic indetermination of ethical norms. For example, do good and avoid evil; give everyone his due. Why does this cause inefficacy? Because its broadness may give rise to the postulation of moral criteria that could be contradictory in concrete circumstances. Consequently, almost any decision could be based on one of the principles of a moral code.

I find that the great percentage of ethical virtues that should guide the behavior of judges, mentioned in the document proposed as a Code of Ethics for the Ibero-American Judicial Official, and those which our distinguished colleague, the Chief Justice from the Dominican Republic, proposed, are in a very high percentage derived from Mexican law and are norms of positive law, which, when not complied with, entail sanctions.

My question is: ¿Are we going to repeat in the ethical codes what our various substantive laws already govern and sanction? Will this be the source and origin of greater juridical certainty and of a greater possibility of achieving perfection in the administration of justice? I doubt it, as regards the precepts proposed in the very interesting and, I would add, virtuous project which has been proposed to us, I find certain situations which would go against the law....

In closing, I would like to say thank you for listening to me. We all know that human beings are always in search of unattainable perfection and this will also occur in the case of judges.

Spain

I, too, would like to congratulate the Chief Justice of the Dominican Supreme Court for the excellent work which, in my opinion, is totally in agreement with what a code of ethics should be, that is, not the use of technical concepts but of deontological infringements. Or, as a great expert in administrative matters used to say in my country, prepare the paragraph of the scoundrel. Consequently, I feel the presentation was very good. Nonetheless, I lean quite a bit toward what the Mexican President had to say because I had my serious doubts as to the efficacy of these codes of ethics. We don’t have them in Spain. I believe more in disciplinary law, that is, in what is an obligation of the administration, of what are disciplinary infractions, sanctioning infractions, that is, disciplinary infractions. I believe this responds more to the concepts of juridical security and that this way would be better. But I don’t see anything wrong in publishing a code of ethics for judicial ethics, although I don’t believe in it. However, I would like to point out some of the concepts included therein as something that goes beyond ethics. For example, accepting gifts is simply a bribery offense, which we either qualify as such or we leave out of the code of ethics or we give a different twist to the expression. Incompatibilities also form part of the sanctioning law, that is, form part of disciplinary law. It is not permitted to practice several professions or to perform activities outside the practice of judicial authority or compliance with judicial duty. That is also disciplinary law. I wouldn’t touch private life because I feel that forms part of the right to personal privacy and that is a sacred right, a human right to which everyone is entitled, judge or no judge. And introducing it in the code of ethics, indicating how life should be led, can lead to much confusion. Another point relates to discrimination with regard to sex, merits, etc. I believe that is a norm included in almost all our constitutions and which, consequently, should not be mentioned. Lastly, since this is in a context of what could be a preamble to leaving America free of corruption. I find this expression too strong; I feel it could be said differently. In any case, I don’t believe the code of ethics is going to solve anything whatsoever. I do feel that we have to prepare a disciplinary code, with very clear definitions and sanctions, a broad spectrum of sanctions including expulsion from the service. I think it is much more effective than the code of ethics, although I insist that I don’t think there is anything wrong in promoting this style, touching up expressions of this nature that have no technical foundation, that form part of the definition of offenses or disciplinary infractions, and that simply cloud the expression even more in a deontological infraction. Thank you.

Panama

Thank you very much, Mme. President. I would just like to participate to request that we all ponder these matters, supporting in part both the suggestions just presented by the representative of the Dominican Republic an well as those of the representative of the Mexican Republic. I do this on the basis of the experience Panama has had with this topic of judicial ethics.

Panama currently regulates both aspects in the same code. The judicial code regulates administrative misdemeanors, on the one hand, and judicial ethics misdemeanors on the other. Undoubtedly we coincide with the Chief Justice of the Dominican Republic in that to speak of judicial ethics is to speak of transparency and honesty of the administration of justice, but I would like to issue a word of warning.

In Panama we have had the experience of regulating both conducts or misdemeanors. On many occasions an official is accused of an administrative infringement and is being sanctioned for judicial ethics infringements; and viceversa: he has been accused of judicial ethics infringemenets and is being sanctioned for administrative infringements. Consequently, both topics coincide in many aspects y it is necessary to know how to differentiate one thing from another, so as not to incur in errors, as suggested by the magistrate of the Republic of Mexico. We must accurately define what we mean by judicial ethics infringements and how we are going to sanction them.

I suggest that we talk first. We are going to propose an Ibero-American code which will cover infringements of judicial ethics, which will provide the basis for principles, and each country will decide how it is going to apply it or how it is going to handle or regulate infringements to judicial ethics, but based on principles that can be governed as a single Ibero-American code of infringements of judicial ethics.

Based on the experience we have had in our country, we are concerned with the way in which these accusations of infringements of judicial ethics are used by litigants. The unsuccessful litigants are the ones who accuse officials of infringements of judicial ethics and frequently abuses are committed with this type of accusations. Therefore, when we speak of this, including administrative infringements, we must think of a way to regulate the abuse of this type of accusations.

I repeat, maybe because of a lack of definition, Panama has had problems in this regard. These subjects are sometimes so opposed and sometimes so alike that we have suddenly thought on many occasions of limiting ourselves solely to administrative infringements. Many administrative infringements are repeated in judicial ethics infringements; they form part of each other and the boundaries between them coincide. It could be that solving a problem would be to limit ourselves to one or the other, but this could cause difficulty in applying norms and sanctions to our judicial officials. This is a call to meditate on this topic. Thank you very much.

Judice Cecilia Sosa Gómez

I would like to introduce only one point for reflection in the following sense. The text being proposed is obviously a working document; it is not binding for any of us. But the Technical Follow-up Unit which we set up at last year’s meeting tried to establish the commitment that we assumed in the Caracas Statement last year, which was to develop the Code of Ethics for the Judicial Official. If we refer to the book in which all these discussions were compiled, the presidents considered that it was important to have an instrument that would regulate the principles of a judge’s behavior.

I believe Mexico’s idea that a disciplinary code be avoided was very valuable, because we would be incurring in an intervention in the area of each of our countries, where we may have different approaches as to the definition of the causes which could give rise to sanctions for the judges in a positive vein, judges should act in one or another manner. However, I think it is important to rectify in the discussion group that the real intention was not – although it was on the basis of complying with this proposed action – to develop a unified disciplinary code. What was really thought in that context is that we were failing to respect the internal regime of our respective countries. This does not mean that we cannot simplify certain fundamental principles to govern us and, in any event --- it is possible that the suggested name is not the best – we should not see it as a standard that will become the internal law in our countries. In other words, any attorney can invoke the standards and what we are trying to do is to have the Chief Justices of the Courts reach a consensus regarding certain principles. I truly believe that in matters of ethics - and you put it quite dramatically by saying that often not even disciplinary action was taken - if such is the case, then what are we going to do with a code of ethics?

I don’t know, I believe that it would be interesting if we again discussed whether the name is generating unwanted constraints. What I really think we want is to have a body of ethical principles that each judge will abide by, without the need for them to be imposed, not even from the regulatory point of view. It is something like incorporating in that code the life experiences of each of us throughout our careers as judges which, of course, is very difficult to describe.

Before continuing, I would like to proceed to a proposal made by a Justice of the Supreme Court of Venezuela, which appears to be very interesting as a proposal, not so much as a code of ethics, but rather as a proposal with respect to corruption. Justice Jorge Rossel, Magistrate of the Criminal Division of our Court and I, propose including in the respective laws regulating the judicial career or in disciplinary instruments for judicial control, a provision dealing with illicit enrichment as a cause for removal from office. The wording for this already exists in the Law regulating the Judicial Career and it states:

"The practicing judge who while in office, or for the two years after leaving such office, were to be found to be in possession of assets, without justification, whether obtained on his own or through a third party, which obviously exceed the judge’s economic possibilities, shall be dismissed from office."

The law adds "that not only can the conduct of judges who have illicitly benefited from their office be sanctioned, but the government does not have to provide proof or determine the origin of such benefit". It is possible that the statutes of some of your countries have already incorporated this regulation, but I feel obliged to read it as a recommendation of one of the justices of the Criminal Court.

Justice Aguirre

On a number of occasions I have heard the comment made in my country that ethical codes are like a fifth wheel on a car and usually are implicit in all regulations. We find these standards in all codes; however, I share the idea of designing or proposing codes of ethics for two reasons: first, because this leads to a systematization of the regulations and second, because they are then very clear and serve to remind us that they are a part of our lives. Therefore, I support the idea that a code of ethics for Latin America be drafted or else proposed.

Something else that should be kept in mind is that it is true that this is a case of generating a document containing general principles, geared almost exclusively to judges. Nonetheless, I believe that a code of ethics should be a little more general for Latin America to include those of us who have the obligation to guide the destiny of the judiciary, since those ethical standards are also for us.

The topic of "ethics" has always been a universal human concern. We are always in search of what is "good". Unfortunately, it often evolves into more abstract exercise and then we begin to talk about ethics beginning with the Greeks and down through the ages to our times and to what we are experiencing. We are not complying with these standards.

I think that the topic of ethics should not only be formal, but it should also be converted into systems, into realities. What should be considered in order to begin to improve human activity in a given sector is to be able to select those persons who we want to work. The selection system should begin with the idea that a selection must be made between those who do not serve and those who do. In my opinion, this is the point of departure. We who are the leaders of the judicial branch should be given the option and the obligation of selection the ideal persons for positions in the judiciary.

There is another important obligation for the leaders. We should improve financial incentives for judges. Often people stray because the reality of day-to-day living becomes overwhelming. Therefore, I believe that a fair remuneration for judges and employees in general, without being excessive, is extremely important. Of course, a very strong disciplinary system and above all a commitment by those who are in charge of these matters to be inflexible in addressing such important matters, is imperative. In other words, it is also an ethical duty that we must fulfill Thank you.

Unidentified

Thank you Madam Chairman. At last year’s Cummit, among other actions, a recommendation was made to prepare a code of judicial ethics for Latin America. After listening to the comments of my colleagues, one begins to think to what degree that code is indispensable. I believe that it is as you have pointed out. It could be useful as an international instrument to convey a message to the Ibero-American conscience.

I really believe that the problem of ethics touches on conduct and the bad educational level in our societies, or it could be that the problem has been magnified by how it is perceived in our societies. For example, we are all politicians to a degree, but the political parties on occasion, or those who have political clout in societies have a tendency to pigeonhole the judicial branch, and above all judges as corrupt, when compared with other areas of the public sector and the private sector. I believe that we who are in the judiciary are aware that this is a perverse perception and far from the truth.

We cannot deny that there are levels of corruption in the public sector, nor can we refuse to accept that there are people who will let themselves be seduced by corruption, by what Justice Aguirre from Costa Rica called "infatuations". But I believe that the problem, as such, is magnified and is used by politicians to justify certain weaknesses in their own performance. Thus, I believe that a code of ethics could be useful, although my colleague, Justice Otero from Spain and my other colleague the Justice from Mexico, disagree because they believe that we are all obliged to act ethically without the need for a code to regulate our actions. We should however be penalized if we are at fault and we already have everything we need for this purpose, running the gamut from criminal legislation for a criminal infraction to legislation, to disciplinary sanctions included in the different laws regulating judicial careers in our countries.

In other words, the means for sanctioning incorrect behavior in all its modalities have already been incorporated in legislation. But since we wish to send a clear message of our willingness to change the generalized opinion that the judiciary is corrupt, we need to make it patently clear that not all judges are corrupt and that justice is not in the hands of the unscrupulous, which is what certain sectors of our society would have us believe. I also think that we should further develop and strengthen certain parameters of last year’s Summit.

The comment made by Justice Aguirre was interesting, particularly the one about a system of incentives for those persons connected with the judicial branch. We should think positively that it is necessary to raise the intellectual level because usually ignorance goes hand in hand with corruption. Unethical persons and above all those who are uneducated are prone to ignorance.

I believe that raising the intellectual level of civil servants is a good way of improving ethical levels, and improving the selection system of such employees is another step toward a higher level of ethics. However, I think that we will never achieve perfection, as my colleague from Mexico pointed out. The human being is constantly in search of perfection which is unattainable, but we can achieve what we should always preserve, the reputation and good name of civil servants. By their very nature, civil servants are bound to maintain a certain ethical or moral leadership in societies. When one loses faith in judges there is nothing to believe in, except for maybe an afterlife and in God’s mercy.

Consequently, these actions to improve training, make the selection procedure more demanding, strictly sanction all infractions and unethical behavior are more effective than a generic code that is actually inviting us to behave correctly. I repeat, we are all aware that we must behave well, work ethically and that outside our milieu there are certain characteristics that distinguish a judge from other civil servants because the responsibility of judges, to a large degree, is greater than that of other civil servants.

The message that we send to all our societies by our actions is on a much more demanding level than of any other civil servant. That is the truth and the commitment that we all understand. But a declaration never hurts because it demonstrates a willingness to do something and perhaps to strengthen that declaration with a Code. Here I would like to interject that as you Madam Chairman pointed out, if the code is given another name, it might be worthwhile to issue it, to have it come from here, because the concern regarding corruption in the judiciary is very real and we need to change that perverse perception that generalizes and stigmatizes all Latin American judges. Thank you.

Unidentified

I believe that as a purely procedural exercise we should first clarify the following: as you will recall the recommended Code was one of the conclusions last year and was included in the Caracas Declaration. We are simply complying with a resolution we accepted last year.

I never personally found this to be a very motivating topic because in the Dominican Republic we have scant experience with judicial ethics. I made an extraordinary effort to find common points, but what is really important at this moment, before proceeding, is whether we will discuss the code or a declaration or general deontological principles; consequently, we have to back up with respect to the Caracas Declaration. I feel that from the procedural point of view we should now decide whether this instrument will be called a code, or general principles, or a declaration so that we can perhaps avoid discussions that lead nowhere.

Unidentified

Just a few words on this topic. I share the opinion that politicians usually stress the existence of corruption in the judicial branch; an opinion that is then filtered to all the citizens of a country. But I likewise agree that this is somewhat the result of an increased demand for transparency and clarity in the life of a judge. Much more is demanded of a judge than of any other civil servant. The scandal caused by cases of corruption in the judicial branch escalates if a judge is involved. I would also like to say that if we are going to fight, if we wish to fight corruption, we not only have to place demands on our judges and civil servants, but we also have to design a system to protect them, just as we protect other members of our society.

Mention was made of cultural formation which is a very effective means of fighting corruption. There are also other ways. I will not restrict myself to the purely material, as for example better compensation, because even without pay corruption is unjustified. What we need to do is find other methods or appropriate means for providing the protection I spoke of earlier.

Lastly, because the commitment already exists to formulate a code of ethics, then by all means let us do so without going into actual detail and simply establishing general standards as recommendations for the participating countries.

Madam Chairman

I would like to state that notwithstanding the commitment derived from the Caracas Declaration, this discussion group is also free to make changes or modifications in the orientation of our own encounters, because as we rotate presidencies/chairmanships, there may be different approaches and opinions.

I believe that we can now include this topic in the proposal. I think there have been several proposals on the issue of Ethics not directly linked to the code, but that can be included in this discussion group. For example, the proposal to find a balance between an Ethics regime like the protection of magistrates, judges and civil servants who answer to those ethic values. We can very well say that the Code of Ethics is a set of principles that rules our systems in a more general and less detailed way. It should not be mistaken with a disciplinary code that we would keep for each country’s internal regulation. If you agree, we can collect these proposals under this view and start with the Second Plenary Session.

Spain

I think we are approaching a possible solution. After all that has been said here, I think those declarations should be positively and not negatively stated, covering protection systems as well - as our Paraguayan colleague said - some dedication to civil servants too. In my opinion it would be good for this discussion group to approve a very generic Code of Ethics in answer to the pretended correction everyone is imputing. Let us approach it with some principle statements. We agree in doing things well, but without defining things that may already be incardinated in an internal disciplinary law or in a civil code, or that resemble an aggression to private lives, or anything similar.

Nicaragua

I believe as well it is possible to issue a global declaration which serves, as El Salvador’s Supreme Court’s president said, as a call to the conscience of civil servants, a parameter to which Ibero-American judges and magistrates can adjust without entering what pertains to a disciplinary regime. For example, the same rule proposed by Venezuela’s Supreme Court’s magistrate - already contained in our judges and magistrates disciplinary regime organic law - that excessive patrimony balances be investigated, could not, in my opinion, be the object of an ethical declaration of this nature.

Going through the document, some points called my attention. For example, canon 6.1 states: "Judicial civil servants will tolerate public criticism and will not reply." I think it excessive, because in our experience in the practice there are people who filter information, not only false but also biased, to the media. Then, when we do not get involved in the public gossip to defend our dignity, when we do not answer questions, reporters say: "silence gives consent" and the information remains as true. Therefore I think this could be stated differently.

Canon 5.s states: "Judicial civil servants shall not be members of organizations or electorate groups, guilds or groups of interest, will not attend or collaborate in their events or activities, nor shall they express political, guild or interest preferences for any sector."

Concerning political organizations I think all is perfect. However, I believe I do not understand the concept of guild/trade union. What is its scope? We have bars to which judges and magistrates belong and have never been banned from them. In Nicaraguan society this membership has always been normal. Then, in matters like these, I would have some reserve.

Justice Cecilia Sosa Gómez

I think we agreed on not reaching detail. We shall keep a principle level and perhaps reformulate the most general canons according to those ethical principles that inspire any judicial civil servant.

Mexico

Thank you, Madam President. I do not want to seem stubborn, and much less taken as a destructive element. I pretend to be widely constructive. However, I think each of the canons proposed is in essence arguable and, incidentally, I find that those not arguable are rhetoric. If rhetoric invades an organization of the nature of ours, we will be doing something wrong and, perhaps, countering justice matters.

When dealing with a canon, in my opinion, we must analyze its real effectiveness. Making general statements about how good or bad it should be contributes very little.

Justice Cecilia Sosa Gómez

I think that the discussion group has to consider a concrete statement: not to have any type of ethics code, neither general nor specific. This was presented by Mexico’s delegate, and in this sense he wishes it not to be rhetoric. In principle we had agreed it should be general. Anything general has always been rhetoric. Therefore, I think it is important, before adjourning the session, to have things clear because these discussion groups are not compelled to reach conclusions. I know that many of us many times condescend on these groups’ conclusions, but we must indeed have a uniform will on how to gather these conclusions.

A proposal which I think very important and could be included in what Mexico’s delegate said, would be to make a specific proposal that the Supreme Court demands fulfillment of the disciplinary procedures already existing in each of our countries. We are aware, as you pointed out, that these do not always function but I think that you could make a specific proposal about this.

Madam Chairman

Justice Sergio Salvador Aguirre Anguiano, Vice-president of Mexico’s Supreme Court of Justice.

Justice Sergio Salvador Aguirre Anguiano

Thank you again, Madam President. I would like to have consensus, if you agree, on the following: The Code of Ethics can be superposed or co-exist in the same ruling sense with the positive law of our countries, or it has a residual value. I am inclined for the second one. If it is the second, I maintain that there are several deontology principles worth of codification that could then be linked to some type of sanction, even if it is not the one emerging from positive law. I believe it worthwhile to work on a Latin American Code of Ethics containing this residual value, a sort of supplement. It is a valid and important endeavor that will certainly require time, effort, and communication. But it can turn out into a very valuable document. This would be my final statement. The topic of the code should be postponed. There should not necessarily be a deadline for this session to have a code, because this was the intention of the Caracas Declaration.

Justice Cecilia Sosa Gómez

Just one thing. I already mentioned we were not compelled. We did have a declaration and will make another declaration. The correction can be made. However, I do not think we at this discussion group should resolve about making a residual code of ethics because if we bring it we will reject it in view that it goes against the regulations we have in our countries. It will not matter if it is residual. The residual value will not have any value in our internal regulations. Therefore, what I think we should simply try to - and this was somehow the atmosphere of this discussion group - describe in some conclusions those ethical principles which must apply to all judicial civil servants. This could be widened to cover not only judges but also judicial civil servants and have, in this sense, a residual value in terms of the disciplinary procedures of each of our countries.

Portugal

I believe I will go back to my initial steps and say that if a code of ethics is not written with this general nature regulation and as a message addressed to all Ibero-America, something must be done. We all heard the Republic’s president yesterday referring to the administration of justice. Perhaps similar criticism is going on in our respective countries. Then, this discussion group representing Ibero-America’s judiciary, in a figurative way, should face these declarations and express its disagreement with what is happening. If it is not a code of ethics, more or less broken down into diverse conducts of deontologic violations, we must make an institutional declaration stating the need to deal with this matter globally in all our countries. That we are not going to write a code of ethics but that we will make an institutional declaration that is more or less the same. However, somehow I think this group cannot hide from the problems it has and that it must face these burning and live questions.

In Portugal, the Supreme is working on these problems. A year and a half ago an administrative procedure code was issued by the government. It regulates all powers/branches and civil servant obligations. Violations of this code are under the disciplinary point of view of the justice civil servants’ high council. Civil servants have a high council identical to the judges’, the judiciary high council. All violations are judged by the council. Civil servants’ violations are judged by a council elected by and formed by civil servants. In case of release appeals, the decision will be made by the corresponding administrative courts. Therefore, we have a totally different organization. This is all. I do not want to create more confusion.

Unidentified

One question. Who is harmed by a general declaration of ethical principles? Then, I will propose and ask the president to submit it to vote, that the main general principles be gathered to elaborate a declaration of principles and that we forget the name code of ethics. Let us simply call it "declaration of principles" based on those principles generally adopted by each country. I will ask the president to consider making a proposal and that mine is proposed.

Unidentified

A brief clarification. I agree with a general declaration stating it can operate as a basis for codes of ethics of all countries gathered at this meeting.