On 30 December, as if to avoid passing the terrible years that we economists predict for 2009, the Constitutional Court issued its decision on the draft legislation that strengthens (sic) and refines taxing jurisdiction. The law itself contains a number of issues worthy of comment, not necessarily of praise, which will be made later, but the sentence in this role from 1243-2008 worth some now. As Jack might have said: we split:
§ 1. The bill provides a way of appointing judges added tax and customs, the traditional training model from a list or machine, if necessary, by higher courts (the case here from a panel formed by the respective court of appeals) , equivalent to the selection or search in other countries. In the project, is given to the Council Senior Public Management proposing a list of at least five and a maximum of ten names from which the appeals court should form a shortlist. And he looked at art. 5 of the text of the law faculty of the appellate court "to reject as founded and for once, all or some of the names on this list. The Court declared unconstitutional the phrase, this is both the basis for the rejection requirement, as imperative as the only opportunity for it. The storyline to declare the unconstitutionality is found in paragraphs 15 º to 20 º, and consists essentially of the following: to keep this provision, the identification of candidates for judges and court clerks and customs tax, the proposal of the Council shall prevail over appellate courts. By its nature, the power to make proposals in this area is typical of the courts, because by the functions they perform, the courts are in a position to properly assess whether the applicants qualify to become a tribunal which has to be objectively subjectively independent and impartial. Instead, give this award to the Council of Senior Public Management would not "... guarantee the parties involved in cases before the knowledge ..." of these courts "... That they will have, in exercising its powers, the independence and impartiality to ensure the right to due process under Article 19 No. 3, fifth paragraph of the Constitution." Under this (no, not an error, the argument ends here), in paragraph 20 º states that the sentence (sic, rectius: phrase) "as founded and one-time" in Article 5 of the text organic law of tax and customs courts, is contrary to the Constitution.
Several things can be said about this argument. First, it is clear that the Court has been more demanding faster than it was until less than twelve months now criticizes the lack of potential impartiality might be in who holds a position of tax court as a result of previous selection process, being that did not seem objectionable when he had to rule on the nature of the powers the regional director as a judge in deciding tax inconstitucionlidad Art. 116 Tax Code. Good performance and hopefully continue.
However, it is less clear the substance of the argument of the Court. First, because it is clear that, first, there is, at the policy level constitutional requirement a requirement to ensure "objective independence" and "fairness subjective "that they should be, and not with the courts acting in a case, but candidates for ownership of their respective offices. I can not find the source of the Constitution (or otherwise) of such requirement aimed at those who will be appointed as judges in any case. Second, because, apart from the absence of any source to confirm the existence of this requirement, it is meaningless. The position of independent impartial objective and subjective are not predicated on judicial organization, characteristics or aptitudes of the candidates for the respective positions, but the results produced with respect to institutional arrangements concerned, aimed at ensuring the independence of the judge (eg, judicial tenure), on the one hand, and conservation of impartiality (institution of the implications and challenges, with regulation of their grounds and procedures). Do not assume that the independence and impartiality of the judiciary must stand at the institutional level, quality or skills of their Judges. Rather, be achieved, in spite of them. If you also get judges with high ethical awareness of their role, the better, but constitutional law is not supposed to work only when the organs are held by holders good and decent, but serve especially when employed by those who can abuse power. Thus, the criticism of any lack of "objective independence" and "subjective impartiality" of the candidates is absolutely void, and consequentially also the objection to the Council of Senior Public Management as a body whose nature can not ensure such independence and impartiality. To reach the above conclusion that the Court Shall be deductible, any portion of the Constitution, apart from the rules set for the appointment of judges of letters, appeals court ministers and ministers fiscal court and supreme court , is a constitutional requirement that the appointment of judges other courts (whose composition and generation delivered to the Constitution leaves the law) courts always involved. I can not find this requirement.
always in line with the previous comment, a very striking thing. The TC makes frequent invocations for that is not for making assessments of credit or opportunity. However, one wonders what kind of consideration is that it is estimated, without giving further explanation, that a particular body is not suitable to select persons eligible to hold office in this case judicial self-and other body? Even accepting that the parameter is intended to introduce the TC-the idea that those elected should have features that ensure its independence and impartiality objective subjective "under which the TC thinking denies the Senior Management Council Public suitability for making that choice, noting that the courts if best? Again, even accepting the standard set by the court, the suitability rating, and the package as is done by the TC, by the very "nature" vs. the administrative body. the court is, to say the least, a very large trial on the merit of a legislative decision. I agree with the court, in any case, the question of merit: it seems to me that selection by the High Council of Public Management was not the most appropriate or whether it was appropriate to generate a new model of judicial recruitment. But this view does not allow me to reach attributed to the higher courts, since the Constitution , functional reserve candidate selection shortlists for training and machines.
§ 2. The TC declared unconstitutional the amendment bill introduced to the art. 284 of the Professional Code, which allowed judges to tax and customs were considered for the formation of triples to provide the charges referred to in points a and b of this article. The proposal effectively was unconstitutional, but the Court chooses a stranger, and part of its course in my view, wrong-way argument. Argues that since the art. 78 of the Constitution allows people from outside the judiciary are part of the payroll to be developed to integrate the CS, it is not eligible for payroll training to be developed to integrate the charges referred to in the art. 284 a) and b) of TOC, since, for this to be appropriate, "... the Constitution would have to point this out explicitly (cons. 29 º). The Court commits two errors here, one of open violation of the text of the Constitution, and one of reasoning.
The error of reasoning is obvious: the argument in this case requires Shall the Charter be explicitly pointed out the possibility could only be maintained if the regulated article or substance was the same. But it is not possible to say that since the Charter provides for certain requirements for the integration of a specific constitutional body, the law can not set the same for other organs (whose quality is even doubtful constitutional body, the Charter does not set or the number or the composition of the courts of appeals.) The scope of art. CPR 78 II to IV is the Supreme Court, for the simple reason that it is the only constitutional organ of the judiciary whose composition is governed by the Charter: 21 members, including 5 foreign to the administration of justice. Art. CPR 78 does not regulate the integration of the courts of appeals, which is given to the law. The constitutional mandate to issue only indicates who draws up the shortlist, who makes the appointment, and the right of the Judge in the longest civil or criminal court seat for a place on the shortlist (provided that expresses interest, as identified in the merit list.) The rest is of legislative competence.
The infringement of the constitutional text is not trivial, and should not be missed: the court pointed out (29 º) "That the rules transcribed (in reference to art. 78, EA) in the previous paragraph allow strangers to the Judiciary (Emphasis of the court, EA) can be part of payroll to be developed to integrate Supreme Court. " This is incorrect: if as noted by the Tribunal, the member of a tribunal that is not part of the judiciary could integrate these payrolls. But it is constitutionally proscribed, as the constitutional term is broader: lawyers " strangers the administration of justice" (art. 78 i. IV, V CPR): the idea of \u200b\u200bjustice leads us to all courts of the Republic (art. 77 i. I CPR) whether or not the Judiciary (Art. 76 i. III CPR: trial courts and courts which are part of the judiciary, and other courts (Emphasis added). The argument that the court enter in the construction. 31 ° is an argument of political history , but does not respond to a direct source of constitutional law.
The truth is that the unconstitutional provision amending art. 284 lit. a) and b) it was much easier to justify. In fact, she meant to incorporate, in cases where their seniority should imperatively be included in the shortlist to a judge, the judge in the respective tax and customs, which is neither a lawyer in civil court or a judge as attorney criminal, only categories to which, according to the age requirement, expression of interest and merit, the Constitution recognizes the right of a member of the jury. To the extent that according to the amendment referred to in the project, a tax court judge could displace counsel in civil or criminal oldest, that amendment was contrary to the Constitution, and this statement was much more simple and less complicated implications than those who choose the TC, which is the diversion argument to base it on an alleged prohibition of integration in their own right slates of judges who are not part of the Judiciary, 32 º " That, by the above considerations, the amendments made to the letters a) and b) of Article 284 of the Organic Code of Tribunals for the No. 6) of article six of the project, providing that judges tax and customs that are not part of the judiciary, if have the respective age and meet other requirements, to integrate its own right triads allude to the precepts that are to reform, are contrary to the provisions of paragraph eight of the Constitution and should be removed from the text . " (Rectius, "in the eighth paragraph of Article 78 of the Constitution", EA). Accuracy is not the mere desire to do it for art, but to be taken into account to close a possibility that the TC's argument leaves open: the judges of family, work and labor and social security collection, although they are part of the judiciary, have no right to integrate its own right triples referred to in the art. I. 78 CPR VIII, to the extent that can not be considered professional judges in civil cases. Moreover, (and this is not a constitutional argument) the legislator has clearly at this point, so far, not including those judges if any of subparagraphs (a) and (b) of Art. COT 284 .... (End).
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