After more than eight months of waiting, the Constitutional Court ruled on the procedure for compulsory control of the bill amending the organic law constitutional. Thus, in September 2009, Shall have been able to exercise its constitutional authority under the law, according to the Constitution entrusts to it. "Shall" because, curiously, the law has not yet published.
not dedicate this review to the analysis of relevant legal aspects of the decision, which does, but only to a very specific aspect of the decision.
delivery
The Constitution authorizes the Court to declare, at the request of a party, or on its own (that is, on its own initiative), the unconstitutionality of a law, it fulfilled the requirement of prior declaration of the inapplicability of a provision for unconstitutional application (not a twister, but the correct way to describe what is supposed to make the Tribunal) in a specific management. This means that once produced the declaration of unconstitutionality, the Court is left to choose whether or not a law repealed. This is a huge power, but the constitutional reform of 2005 actually delivers it the Tribunal. Why should reclaim the parliament or the president of his time, not the Court. However, the relevant question of the power to repeal a law is not only the faculty itself, but an opportunity that can be exercised. The bill would amend the organic law of the Constitutional Court established constitutional end of a period: six months. But the Court has stated that to the extent that the Constitution does not set a limit to its power, the legislature has failed to do so, and declared unconstitutional the provision establishing that time.
I must admit that the legal level, it may be possible to find plausible arguments for Court decision on this point. But she ignores important policy considerations, that a constitutional court can not dismiss. The main one is that the body is exercised, in our case the Constitutional Court has a power not subject to control. The power to repeal legal provisions office, fulfilling the stated requirement is not jurisdictional in nature, but legislative. The very opening of proceedings by the court to declare unconstitutional a political act, policy decision. The declaration of unconstitutionality as well, from the moment that does not depend on the formation of will on the law applicable by the majority the Tribunal, but requires a special quorum of 4 / 5 of its members. In other words, the issue is not resolved by the prevailing legal standard the majority but the minority has a veto on the decision, veto that can only be understood, then, as a political power. Thus, within six months trying to fix the project was more than reasonable to limit the political and legislative power of the Court, and not leave it delivered to your discretionary decision. With its decision, the Court reserves without limit or restriction to decide the opportunity and time to declare unconstitutional a provision of law (already declared unenforceable) be repealed. The unenforceability will accumulate, enlisting a growing catalog, and no time limit-of retrospective provisions available to the repeal of the Court competition. And he will gain ever greater power to intervene and decide when, in shaping the legal system.
There are above a level of naivete of the Tribunal. I think that solves taking the view that members of the Tribunal, being the people who are not abuse their power. That might be true. The naivete is that as individuals they are, are not always members of the Tribunal. Others will come. I do not know if the current ministers will want others in their time some day they can choose either to declare the repeal of penal provisions, which could apply to anyone in particular, in the future, or requirements governing the electoral process just at election time, or procedural requirements, in light of certain procedures or, better yet, thinking Campiche, certain environmental regulations or urban-right and by chance events in a project and executed ... The examples could continue. The accumulated experience and thought from Plato tells us: it is desirable to organize the institutions thinking about the charges they will be exercised by individuals correct. Sure, if it happens, we should rejoice. But sooner or later nature expresses human as it is, and then the satisfaction of a naive and complacent political ethics gives way to the sober assessment of the consequences of naivety.
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