74.
In the instant case, the parties agree that one of the functions delegated to
the Judicial Commission by the Supreme Court of Justice is to appoint provisional
and temporary judges, and to remove them when there are no disciplinary grounds.
Specifically, the SPA of the SCJ has indicated that the “Judicial Commission
appoints [the judges], by delegation from the Plenum of the Supreme Court of
Justice, owing to the need to fill judicial posts while the above-mentioned process of
the restructuring and reorganization of the Judiciary is completed.”89 The SCJ
considered that these powers did not negate the job stability that administrators of
justice should have, because:
The Judicial Commission is authorized to annul the appointment of judges who have entered the
Judiciary without taking the respective competitive examination, avoiding the prior
administrative procedure, since their stability would be subject to their having sat the
competitive examination and obtained a permanent post.”90
75.
Notwithstanding the foregoing, at the domestic level, there were differences
of opinion between the Political and Administrative Chamber and the Constitutional
Chamber of the Supreme Court of Justice with regard to the Judicial Commission’s
competence to annul appointments of judges based on “comments” submitted to
this Commission. Initially, the Political and Administrative Chamber considered that
an administrative decision, based on “comments submitted to the Commission,” to
“annul” the appointment of a provisional judge “means that it gave that decision a
connotation that can only be understood as a punishment, implying that an error
had been committed.”91 Thus, according to the said Chamber, “the competence to
order [the removal] corresponded to the Restructuring and Operation Commission
[…], and not to the Judicial Commission.”92 Nevertheless, the Chamber considered
that “this does not entail a generalization” from which it could be “inferred that, in
all cases in which the Judicial Commission considered that judges must be removed
[…], it has to open an administrative procedure,” because the Commission “retains
the power to annul the appointments it makes, in keeping with the powers
conferred by the Plenum, exercising a necessarily prompt process.”93 Hence, the
Chamber concluded that, “should the Judicial Commission presume that a longserving judicial official has committed an error, the appropriate step […] is to
forward the matter to the Restructuring and Operation Commission […] so that […]
it may examine the matter, respecting [the official’s] constitutional rights.”94
76.
This opinion of the Political and Administrative Chamber was subsequently
annulled by the Constitutional Chamber of the Supreme Tribunal, which considered
that “the decisions annulling the appointment of provisional judges named by the
Judicial Commission are not disciplinary decisions, but rather decisions taken in
exercise of discretionary powers, [so that] a decision of this nature does not entail
89
Judgment No. 2414 of the Constitutional Chamber of the Supreme Court of Justice, supra note
79, folio 5783.
90
Judgment No. 01989 of the Supreme Court of Justice of August 2, 2006. Cited in: Judgment No.
2414 of the Constitutional Chamber of the Supreme Court of Justice, supra note 79, folio 5768
91
Judgment of the Political and Administrative Chamber of the Supreme Court of Justice of August
7, 2007. Cited in: Judgment No. 2414 of the Constitutional Chamber of the Supreme Court of Justice,
supra note 79, folio 5771.
92
Judgment of the Political and Administrative Chamber of the Supreme Court of Justice of August
7, 2007. Cited in: Judgment No. 2414 of the Constitutional Chamber of the Supreme Court of Justice,
supra note 79, folio 5772.
93
Judgment of the Political and Administrative Chamber of the Supreme Court of Justice of August
7, 2007. Cited in: Judgment No. 2414 of the Constitutional Chamber of the Supreme Court of Justice,
supra note 79, folio 5773.
94
Judgment of the Political and Administrative Chamber of the Supreme Court of Justice of August
7, 2007. Cited in: Judgment No. 2414 of the Constitutional Chamber of the Supreme Court of Justice,
supra note 79, folios 5773 and 5774.
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