Regarding this proposal of the Minister of Justice to review the “laws of justice”, the reinstatement to magistracy, without further examination, of former judges or prosecutors with at least 10 years of experience in these professions is another controversial element found in the MCV Reports.
The profession of being a magistrate is and must remain a career profession that requires vocation. A magistrate who elects another system, for financial (lawyering), political or any other reasons, must assume the consequences of his or her decision. This proposal leaves an open door to the magistracy system, and also delivers the possibility of juggling with entries into and exits from the system, based on considerations other than the professional ones and considering interests other than those of the justice.
The justification given to this change makes it look like the magistrate is almost constrained, due to the incompatibility regime, to leave the system. But if the magistrate resigns once, it means that he does not accept the system’s constraints of which he was thoroughly informed at the beginning of his career, thus being fully aware of what is expected of him. There is no guarantee that the magistrate, after another five years for example, will not resign again from the system, because the incompatibilities and deontological constraints will certainly continue to be regulated in the future, too. Such psycho-professional instability is simply unacceptable, particularly when provided as an explanation emanating from the highest level of magistracy.
Another issue is raised by the concepts of independence and impartiality. A magistrate unsatisfied with the regime of the judiciary may choose to resign and become a lawyer, where he/she has the possibility of being in contact with the criminal environment if he/she works at the criminal court, as he/she was previously a judge/prosecutor. Subsequently, if he/she re-joins the system, and has to adopt a position that is required to be independent and impartial, it will be extremely difficult to achieve, especially because he/she will not appear to be impartial and independent for an external, objective and informed viewpoint. Likewise, a former magistrate may choose to act as a politician, a representative of a political party, or simply in a profession that is outside the legal field. All of these hypotheses have nothing in common with an existing vocation, with the calling of the profession. Through this legislative gap, we cannot help but wonder about the external appearance of the magistrates that have vocation and remain in the system despite not only the massive workload and the low salaries that do not correspond to the level of responsibilities and workload, but also the incompatibilities.
A magistrate might take a step back from these incompatibilities to substantially increase his or her income by joining the Bar or through other methods that do not implicate any constraints, or simply to gain glory and extend his/her political network, after which the SCM allows his/her return to the magistracy, where he/she will share an office with a colleague who all this time remained in the system, by way of example, due to being, should we say, less inspired.