Oath or affirmation at the Judiciary

Abstract

Abstract:

The oath or affirmation of office required from members of the judiciary is intensely regulated in the Spanish legal system. Second only to the royal oath contained in art. 61 of the Spanish Constitution, it is undoubtedly the highest-ranking oath, since it is set in an organic law (LOPJ, Organic Law for the Judiciary Power) and enjoys profuse detail in further statutes. This is due to a double-guarantee role assigned to the oath of office in the Judiciary. From the oath-taker’s perspective, the oath reinforces judicial independence. From the
oath-receivers’ perspective, the oath reinforces active constitutional loyalty.
This paper deals, first, with the specificities of the oath of professional judges, paying attention to aspects such as the formula, regulated formalities, its consideration as an independent act different from the inauguration act, the need to confirm the oath at each career promotion and not just upon entering service, the obligation of the oath-taking authority to communicate its successful or unsuccessful completion, or the harsh sanction of nullity, identified with resignation of post, in case of failure to take the oath.
Second, with some nuances, the same applies to the remaining members of the judiciary who hold jurisdictional powers but do not pertain to the professional judges’ career. Justices of the peace exert such powers in a stable manner. Their oath is also an independent act for their inauguration, and failure to take it also results in nullity, but the oath is only required upon the first appointment.

An oath is also required from substitute, replacement and intern judges. When such a role falls upon non-professional judges, they are required to take the same oath professional judges take. This requirement is all the more stressed by the fact that candidates to hold substitute or replacement roles must commit to taking the oath upon applying for the position. When exceptionally permitted
to exert jurisdictional powers, intern judges are required to take the same oath professional judges take, regardless their obligation to take the same oath once they are admitted to the professional career.
Finally, another type of oath or affirmation is that required from members of the judiciary in their role within governing bodies, namely the General Council for the Judiciary (Consejo General del Poder Judicial, CGPJ) or governing bodies of jurisdictional courts. Such an oath converges with the regular judicial oath.