CONCURRING OPINION OF JUDGE EDUARDO FERRER MAC-GREGOR POISOT ON THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF THE SUPREME COURT OF JUSTICE (QUINTANA COELLO ET AL.) V. ECUADOR, AUGUST 23, 2013 I. INTRODUCTION: THE ROLE OF JUDICIAL INDEPENDENCE IN A CONSTITUTIONAL AND DEMOCRATIC STATE GOVERNED BY THE RULE OF LAW 1. This case highlights the importance of one of the defining principles of the constitutional and democratic State governed by the rule of law: the independence of judges. In general terms, we can begin by affirming that a judge is independent if he takes decisions based solely on the case before him, without being influenced by particular considerations related to the parties that are not relevant to the specific matter, and if he rules without having regard to his own interests or to those of the individual or body that appointed him. 1 2. To accomplish that objective, institutional guarantees must be provided to enable judges to exercise this independence. These guarantees include security of tenure in their positions, adequate remuneration and a system for appointments and removal from office. 2 Indeed, with regard to judicial independence The Federalist No. 78 notes that “nothing contributes as effectively to its firmness and independence as tenure in office, the standard being good behavior for continuance in office of the judicial magistracy.” 3 However, such guarantees will never be sufficient if a judge does not wish to exercise these. 4 3. Now, from an institutional perspective, judicial independence is inherent to the principle of the separation of powers. Both elements, in turn, are essential to an understanding of the authentic rule of law. As to the principle of separation of powers, it is often said that nowadays this cannot be conceived in an absolute or rigid manner; rather, in the modern concept, it implies a distribution of the State’s functions through an appropriate organization of mutual and reciprocal relations and controls between the powers. Thus, 1 MacDonald, Roderick A. and Kong, Hoi, “Judicial Independence as a constitutional virtue”, in Michel Rosenfeld and Andras Sajo, The Oxford Handbook of Comparative Constitutional Law, Oxford University Press, 2012, p. 832. In similar vein Chaires Zaragoza, Jorge, “La independencia del poder judicial”, Boletin Mexicano of Derecho Comparado, new series, year XXXVII, No. 110, May -August 2004, p. 532. 2 Ernst, Carlos, “Independencia judicial y democracia”, in Jorge Malem, Jesús Orozco and Rodolfo Vázquez (comps.), La función judicial. Ética y democracia, Barcelona, Gedisa, 2003, p. 236. 3 Hamilton, A., Madison, J. and Jay, J., The Federalist, translation by Gustavo R. Velasco, Mexico, Merits of Cultura Económica, 1ª rep., 2004, pp. 331 and 335. 4 MacDonald, Roderick A. and Kong, Hoi, op. cit., p. 834.