rather than unlimited separation, what this principle really seeks to prevent is the
concentration of powers. 5
4.
From its remotest historical origins, the separation of powers has always implied, in
relation to the judiciary, the independence of this branch of government from the executive
power. Judicial independence has always been understood as a necessary outcome of the
separation of powers, aimed at ensuring that judges are able to withstand pressures or
attacks both from the legislative and the executive powers. Thus, since its inception, judicial
independence has embodied the essence of the separation of powers. The independence of
the judicial function can be conceived as an irreplaceable component of a democratic State
governed by the rule of law, which also implies other contiguous requirements, such as a
regulated, well-ordered and coherent procedural system, which acts as guarantor of the
juridical security and human rights of individuals. 6
5.
At the same time, the independence of the judicial power vis à vis the executive
power may be conceived as a constitutional mechanism that impedes or hinders the
arbitrary and unlawful exercise of power, and that obstructs or prevents its abuse or illegal
exercise. 7 It therefore makes sense to ensure that the administration of justice is never a
manifestation of political power, and that it is never in any way subject to the State organs
that exercise that power, since it would be pointless to dictate standards that limit the
actions of those who govern, if later, in the contentious phase of Law, these could influence
the outcome of litigation. 8
6.
Certainly, the role of judicial independence in the democratic State under the rule of
law could not be overlooked by the Inter-American Democratic Charter (cited in the
Judgment) 9; after reaffirming that representative democracy is an essential element for
stability, peace and development in the region, the Charter establishes the following in
Article 3:
Essential elements of representative democracy include, inter alia, respect for human rights and
fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the
holding of periodic, free and fair elections based on secret balloting and universal suffrage as an
expression of the sovereignty of the people, the pluralistic system of political parties and
organizations, and the separation of powers and independence of the branches of government
(underlining added).
7.
Thus, the Inter-American Democratic Charter not only recognizes respect for human
rights and fundamental freedoms as essential elements of representative democracy, and as
elements inherent to electoral democracy; it also requires the separation of powers and
independence of the branches of government, particularly the jurisdictional role in this case.
The role of judges in the democratic governance of States implies acknowledging their
genuine separation and independence from the rest, i.e. from the executive power, not only
in the personal aspect, corresponding to each member of the judiciary, but also in the
institutional aspect, as a separate body of authority among the components of the State.
5
Kelsen, Hans, General Theory of Law and State, translation by Anders Wedberg, Cambridge, Harvard
University Press, 2009, p. 282.
6
Cf. Díaz, Elías, Estado de derecho y sociedad democrática, Madrid, Taurus, 1998, p. 48.
7
Cf. Bobbio, Norberto, Liberalismo y democracia, translation by Jose F. Fernandez Santillán, Mexico, Fondo
de Cultura Económica, 2001, pp. 19-20.
8
Cf. Díez-Picazo, Luis María, “Notas de derecho comparado sobre la independencia judicial”, Revista
Española of Derecho Constitucional, No. 34, January-April 1992, p. 19-20.
9
Para. 179 of the Judgment.
2