The Constitutional Court (CC), decided by a vote of two to three, that the list of candidates for attorney general that was delivered to the Presidency last Wednesday, return to the nomination commission and that this body must repeat the process from the file evaluation phase.
The titular magistrates Julia Rivera, Dina Ochoa and Roberto Molina Barreto supported the resolution, although the three reasoned their vote. Annabella Morfin and Astrid Lemus voted against the action presented by lawyer Raúl Falla, from the Foundation against Terrorism.
Molina Barreto shared his reasoned vote, where he points out that, although he agrees with the CC’s decision, it is necessary to explain the reasons why he voted that way. He states that being a judge does not count as a lawyer to accumulate the experience required to compete for the position of attorney general.
The magistrate insists that the functions of lawyer and judge cannot be taken as equal because “there is a difference between the practice of law (…) and jurisdictional activity,” and explains that, in his opinion, the constituents separately regulated how to understand it, so that the experience of a judge would be taken to compete for the position of Appeals magistrate or other equivalent bodies, but not for attorney general..
Molina Barreto also clarifies that the experience of the legal profession Yes, it can be homologated with a prosecutor of the Public Ministry, since the latter directs the criminal investigation, formulates accusations, litigates before courts and carries out activities that constitute part of the professional practice of law..
However, Molina Barreto says in his concurring opinion, the judge exercises the jurisdictional function itself, an activity that, although it is exercised by a graduate of a university as a legal professional, cannot be subsumed within the concept of practicing law to accumulate years of experience.
Contradiction?
Molina Barreto in his concurring vote recalls that the CC already touched on the issue of the competence of judge and lawyer in 2014 and 2022. He clarifies that there are no contradictions but rather “an evolution” of the interpretative criteria.
According to its constitutional analysis, in the 2014 precedent equality was guaranteed, in 2022 it is specified which activities satisfy the specific constitutional requirement and now whether it should be counted as professional experience. His conclusion is that all professional paths are worth the same, but not all of them count as a requirement to accumulate experience in specific cases, such as the candidacy for attorney general.
Delayed reaction
Molina Barreto also included in his concurring vote a complaint to the CC itself for hearing the appeal late. He says it was about “an unjustified delay in the processing of the constitutional action” and that led to the decision being made until now, when the nomination committee had already integrated the roster.
The request for protection reached the CC on March 4, according to Molina Barreto, at “an opportune stage to affect the verification of the requirements of the postulates”, however, the plenary session did not hear until this Thursday, April 23, about the issue “for no reasonable reason.”
Although he recognizes that the file was attempted to be heard on March 17, with the then president of the CC, Leyla Lemus, but he, Dina Ochoa and Nester Vásquez refused due to the similarities there were with a criterion issued by the Court in 2022. It was until last April 14 that Ochoa, Rivera and Molina Barreto asked the new president, Annabella Morfin, to know the protection.