RULE OF LAW, HUMAN RIGHTS AND JUDICIAL INDEPENDENCE

A SOUTH AMERICA TOUR

Resumo

Trust in public institutions, including in the justice system, is crucial for the smooth functioning of democratic societies. Respect for the Rule of Law is intrinsically linked to respect for democracy and for fundamental rights. The Rule of Law includes, among others, principles such as legality, legal certainty, prohibition of the arbitrary exercise of executive power, separation of powers, equality before the law, effective judicial protection by independent and impartial courts and effective judicial review. To ensure that the public authorities respect the principle of legality in their actions is a competence of the courts. Autonomy and discretion are the critical elements that define judicial independence. That is why judges must be protected from internal and external intervention, pressure, or any kind of corruption liable to jeopardize their independence. The independence of courts and their proper functioning are essential for the confidence of citizens and businesses in public administration, for the functioning of markets and the legal order. In fact, the Rule of Law affects every sector of society. We can measure the respect for the Rule of Law by indicators such as government powers, absence of corruption and fundamental rights. This work aims to study how corruption may affect judicial independence and judges’ autonomy and its effects on human rights, especially in what concerns equal treatment and absence of discrimination, freedom of opinion and expression, belief and religion, assembly and association, and markets, through the analysis of data from several South American countries. Because it is a current, pertinent and even vital theme for the very existence of democracy, and clearly not exhausted at an academic level, this article presents some of  the mechanisms used to condition judicial independence. Through a critical analysis of these mechanisms, it intends to highlight the legal, political and economic means that may be determinant for the success of the reestablishment of judicial independence and the Rule of Law, especially in some countries of South America.