Consortium Legal - Nicaragua
  March 23, 2004 - Managua, Nicaragua

The Judicial Career Law Draft Bills Two Versions on The Attempt to Modernize the Judicial Power
  by Gerardo M Hernández

At this moment there are in the National Assembly two draft bills on the future Judicial Career Law, one proposed by the Supreme Court of Justice and the other one by the Presidency of the Republic. This article explains the main differences and similarities between these Judicial Career Law projects. Ways to enter to the Judicial Career · Both projects adopt the idea of public competition as the general mechanism of admission to the Judicial Career. However, the Supreme Court of Justice project incorporates in its article 21 the "Extraordinary Admission". The article 24 of the project reserves this way of admission to “recognized prestige jurists within national forum, who satisfy the established formal requirements for the aspirated category, without undergoing neither examination or specific test nor the theoretical-practical course required for the regular admission”. Therefore, the project of the Court contemplates the possibility that certain people could enter to the Judicial Career without passing the public competition, as the majority would have to do. Although the project of the Supreme Court settles down that the extraordinary access will be limited, this possibility maintains the system of discretionary appointments that is tried to be eradicated with the establishment of the public competition. · Another essential point in the differences between both projects is the situation in which the current members of the judicial power are left. On this matter the project of the Executive authority considers that all must be subject to the public competition procedure, including the present civil employees (article 21 of the project). On the other hand, the project of the Supreme Court considers that the civil employees whom already have been three years in the Judicial Power will be integrated into the judicial career with no need of public competition. Otherwise, they will have to wait until this requirement is met in order to be integrated, whenever they are not previously dismissed (article 92 of the project). In that sense the proposal of the executive seems to respond to the Nicaraguan society opinion that considers that the current Judges and Magistrates are a fundamental part of the Judicial Power crisis. · The Supreme Court of Justice (CSJ) project suggests in its temporary provisions, article 93, that the CSJ Magistrates whose offices expire and are not old enough to retire can decide between applying for the vacancies in the Judicial career, their re-election or the anticipated retirement with a retirement pension defrayed by the Judicial Power. This situation is also foreseen in article 88 of the Supreme Court project: any Magistrate of the Court of Appeals whose office expires: “will be integrate into the category of District Judge, occupying the first existing vacancy.” This provision could attempt against the future development of the Judicial Power while it establishes a judicial career “downwards” in which a lawyer could enter the system through the Supreme Court of Justice, and soon continue his judicial career occupying successively the inferior levels. Judicial Administration and Judicial Career Governing Authority The most controversial matter between the Judicial Power and the Executive authority is the creation of “Consejo Nacional de Administración y Carrera Judicial” (National Council of Judicial Administration and Judicial Career) proposed by the executive power. This organ is formed by the President of the Supreme Court of Justice, a Magistrate of the Supreme Court, the Dean of a Law School and two lawyers proposed by Professional Associations (the last three members elected by the National Assembly). Its function is to direct the administration of the resources of the Judicial Power as well as the Judicial Career and the Disciplinary authority. The Supreme Court draft bill grants these faculties to itself through the Administrative, Judicial Career and Disciplinary Commissions, composed by some of the Magistrates of the Supreme Court of Justice. The executive power project responds to the modern tendency to separate the pure jurisdictional function from administrative matters. Nevertheless, the proposal of the executive power establishes a non-suitable appointment form of the National Council of Judicial Administration and Judicial Career members. They will be chosen by simple majority of the National Assembly while the Magistrates of the Supreme Court of Justice are elected by qualified majority, although the members of the Council will have (in practice) equal or greater authority than the magistrates of the Supreme Court.