EL PROCESO DE INCONSTITUCIONALIDAD - Aula Abierta # 9

Introduction to the Process of Unconstitutionality

Overview of Aula Abierta

• The session welcomes participants to "Aula Abierta," aimed at sharing legal knowledge with the broader community.

• The school seeks to differentiate itself amid an academic oversupply by focusing on thematic and didactic value.

Understanding the Process of Unconstitutionality

• The process of unconstitutionality is distinct from general legal processes, as it does not arise from conflicts between subjective interests or violations of rights.

• This process serves as a constitutional control mechanism, rooted in the Austrian Constitution of 1920.

Characteristics and Implications

Unique Aspects of Unconstitutionality Proceedings

• Unlike typical judicial processes, only the Constitutional Court fully addresses these cases, making it a unique instance.

• The aim is to declare a law invalid in abstract terms while maintaining a presumption of constitutionality until proven otherwise.

Judicial Outcomes

• In this process, no precautionary measures are allowed; laws remain effective until an affirmative ruling is issued.

• Rulings in unconstitutionality cases have erga omnes effects, meaning they apply universally rather than just between parties involved.

Legitimacy and Access to Filing

Who Can Initiate Proceedings?

• Active legitimacy for filing must be restricted; initially proposed by Alberto Borea Odría that any citizen could file for unconstitutionality was rejected due to potential abuse.

• Currently, only specific entities can file: the President, legislative minorities (25% approval), the Attorney General with consent from their board, and certain professional associations.

Recent Reforms

• A 2017 constitutional reform added new filers including regional governments and local authorities through their representatives.

• The threshold for citizen involvement was lowered from 50,000 signatures in previous constitutions to 5,000 under current regulations.

Discrepancies with Constitutional Reform

Judicial Authority and Constitutional Control

• The speaker expresses disagreement with the constitutional reform, arguing that the judiciary cannot file a claim of unconstitutionality due to its role as an institution.

• The judiciary performs daily constitutional control through judges resolving cases, which allows them to identify instances of unconstitutionality in specific cases.

• Allowing the judiciary to declare laws unconstitutional could disrupt the separation of powers, enabling other branches (executive and legislative) to challenge judicial decisions.

Conceptual Misalignment in Judicial Leadership

• The president of the judiciary is discussed as having dual roles: leading the entire judicial institution and presiding over the Supreme Court, creating potential conceptual confusion regarding authority.

• There is a concern about legitimacy; only certain entities can actively present claims based on strict criteria related to constitutional processes.

Legitimacy in Legal Proceedings

• Active legitimacy for filing claims is limited; only state organs authorized to issue laws can be challenged, including legislative bodies and regional governments.

• Regional and municipal ordinances are also recognized as having legal standing under this framework, emphasizing decentralized governance.

Scope of Normative Challenges

• The focus shifts to identifying which norms can be contested for unconstitutionality; primarily those defined by law or constitutionally established procedures.

• A distinction is made between ordinary laws and constitutional reforms, noting that previous frameworks did not adequately address challenges against constitutional amendments.

Evolution of Constitutional Norm Recognition

• Recent legal developments have clarified that norms issued by executive decrees or international treaties may also be subject to constitutional scrutiny.

• The new procedural code has expanded recognition of what constitutes a norm eligible for review, including previously overlooked categories like derogated norms.

Comprehensive Approach to Constitutional Law

• Emphasizing a broad perspective on constitutional law study ensures comprehensive understanding beyond isolated norms; it includes examining all relevant legal frameworks.

• Notably, there’s an acknowledgment that some laws lack explicit mention in constitutions but still require oversight due to their origins or procedural irregularities.

Inconstitutionality and Its Classifications

Continuity Theory and Decrees

• The theory of continuity regarding decrees laws suggests that when transitioning back to a constitutional state, the norms from a de facto government persist. This allows for potential constitutional control but only on substantive grounds.

• Explicitly recognizing decree laws within constitutional frameworks could inadvertently legitimize de facto governance, hence it is preferable to keep such discussions strictly legalistic.

Classifying Inconstitutionality

• Inconstitutional processes can be classified in various ways: by form, substance, directness, or indirectness. The procedural code and constitutional jurisprudence provide these classifications.

• There are three main types of inconstitutionality: total (the entire norm is unconstitutional), partial (only parts are unconstitutional), and direct/indirect (where the challenge directly affects the constitution or its related norms).

Types of Inconstitutionalities

• Direct inconstitutionality refers to challenges that impact the core constitution itself, while indirect inconstitutionality affects related norms without targeting the constitution directly. Partial inconstitutions are more common than total ones.

• Substantive inconstitutions occur when a law violates fundamental rights or constitutional values; procedural issues may also lead to claims of unconstitutionality based on how laws are constructed.

Omission as a Form of Inconstitutionality

• A significant oversight exists regarding "inconstitutionality by omission," where legislators fail to act on mandates set forth by the constitution due to negligence or intent. This issue is not adequately addressed within current legal frameworks.

• The absence of legislative action on constitutional mandates represents a serious gap in governance and has been overlooked during political upheavals concerning constitutional changes or assemblies. Many scholars view this as a critical failure within constitutionalism.

Legislative Responsibilities and Consequences

• When discussing legislative failures, it's crucial to differentiate between active violations (commission) versus passive neglect (omission). For instance, delays in appointing judges for the Constitutional Tribunal highlight this issue significantly.

• The ongoing neglect of certain appointments reflects broader systemic issues influenced by political considerations rather than strict adherence to constitutional timelines, which undermines institutional integrity over time.

Effects of Unconstitutionality Rulings

• Sentences resulting from unconstitutional processes differ from regular demands; they cannot impose precautionary measures due to presumption of constitutionality until proven otherwise through judicial review processes.

• Rulings from the Constitutional Tribunal carry weight akin to law; they must possess sufficient authority to invalidate existing norms effectively across all state powers and citizens alike, reinforcing their normative force within legal systems.

Powers of the State and Constitutional Invalidation

Understanding Legislative Roles in Constitutional Processes

• The concept of "negative legislator" is introduced, where the constitutional tribunal acts as a negative legislator during unconstitutional processes, contrasting with Congress as a positive legislator that creates laws.

• Sentences from constitutional processes are generally retroactive; however, when dealing with unconstitutional norms in penal or administrative law, these sentences can have exceptional retroactive effects.

• The discussion highlights the unique characteristic of "deferred sentences," where the tribunal acknowledges outdated legal texts but delays immediate effects until an updated norm is provided.

Implications of Outdated Norms

• The tribunal's decision to declare a norm unconstitutional does not lead to immediate expulsion from the legal framework; it allows for continued use until an updated version is available.

• This situation reflects a principle known as "horror vacui," emphasizing the dangers of having no applicable text versus retaining an outdated one while awaiting updates.

Retroactivity and Differentiation in Sentencing

• Summarizing key points: sentences in unconstitutional processes can be both retroactive and deferred, marking significant differences from general process theory.

Types of Sentences Established by the Constitutional Tribunal

Classification and Competence

• The session transitions into discussing various types of sentences established by the constitutional tribunal, which has evolved beyond merely handling abstract cases to addressing concrete instances like habeas corpus and amparo.

• It’s noted that unless serving as precedents, most sentences are inter partes (between parties), while those serving as precedents are termed "sentencias de principio."

Interpretative vs. Manipulative Sentences

• Two main types of sentences discussed: interpretative (clarifying existing laws within constitutional bounds) and manipulative (where the tribunal effectively enacts legislative functions).

• Interpretative sentences affirm the tribunal's role as supreme interpreter of constitutional law, akin to distinguishing between old and modern texts based on their relevance.

Controversies Surrounding Legislative Functions

• A critical point raised about whether the tribunal should engage in legislative functions through manipulative or normative sentencing—this remains contentious among scholars regarding its authority.

Constitutional Interpretation and Legislative Power

The Role of the Constitutional Tribunal

• The speaker emphasizes that none of the 206 articles in the constitution allow for certain actions, yet the constitutional tribunal engages in legislative activities, effectively creating itself as a body.

• It is argued that through manipulative rulings, the constitutional tribunal acts as a positive legislator rather than merely interpreting laws, which raises concerns about its role and authority.

Conclusion and Call to Action

• The session concludes with an invitation to explore various law courses offered by different law schools, highlighting the importance of understanding constitutional processes.

• Viewers are encouraged to subscribe, share, and like the content if they found it useful, indicating a community engagement aspect surrounding legal education.