With the text that the Constituent Assembly approved 50 years ago, we are left, in several areas, with constitutional discipline that is very different from that in force today. This is commonly mentioned in relation to the “economic constitution”, and even the organization of political power, but it is less frequently emphasized in relation to the “judicial constitution”.
In the text of 76, the past was cut off by separating the two judiciaries and — contrary to what is sometimes inculcated — the MP’s autonomy was not enshrined, nor was it advanced with rules on the organization and internal composition of its superior body, left entirely to the legislator’s options. No deadline was set for the PGR’s mandate and, given the rules on appointment and dismissal, renowned constitutionalists would note shortly after that this position “appeared designed in the Constitution as an organ of political responsibility”.
No body was constitutionalized in which “MP agents” were represented (a name that continued to be used). This representation was foreseen, yes, for judges, within the scope of the Superior Council of the Judiciary (CSM), but there was also much left to the legislator’s options (composition, presidency, etc.). Few remember today, but the law placed the President of the Republic at the head of the CSM, as it was in France and Italy — and this in full accordance with the text approved by the constituents.
Nor were rules such as those that currently deal with access to Appeal Panels and the Supreme Court included, notably those that bar the 2nd Instance to jurists of merit and those that ensure access for prosecutors to the STJ in their own quota.
The existence of another Supreme Court — the Supreme Administrative Court —, nor even administrative and tax courts, was not constitutionally imposed, as is the case today. By the text of 76, the legislator, if he chose this route, was authorized to insert them into a common jurisdictional body and to dispense with this second Supreme Court (and consequently a second Superior Council, dedicated to these courts, as it exists today, in parallel to the CSM).
In terms of guarantees of criminal proceedings, a greater role was attributed to the judge. Faced with a procedural panorama in which a distinction was made between preparatory and contradictory instructions, it was established that “all” of it would fall under the jurisdiction of the judge (without provision, then, for any kind of “delegation” to other entities, as was later added). This helps to better understand that in the early 1990s, several judges of the Constitutional Court considered the conversion of the MP into the “dominus” of the inquiry unconstitutional.
These are just a few examples. But they legitimately say that a good part of the constitutional lines that have been guiding justice policies were introduced in subsequent revisions, with the continued acceptance of various claims for constitutional consecration – including some of a corporate nature, as was mentioned in the Constituent Assembly, in a premonitory way.
The judicial constitution approved by the constituents, close to the principles previously defended by the democratic opposition to the dictatorship, was more sober in the delimitation – so relevant for governance – between what is regulated in the Constitution and what is left to the legislator and future political choices. More open, therefore. On a day of honor to constituents, yours is your owner.
Write without applying the new Spelling Agreement
Leave a Reply