samedi, janvier 06, 2018

06.01.18, justice, reform, independence, CSM, court of cassation, ministry, democracy

English and French text
Marc SALOMONE
Blog: madic50.blogspot.com / Book: The two forms, Amazon
Saturday, January 6, 2018

Copy to:
President of the Republic / Prime Minister / Attorney General
Presidents of Parliament / Presidents of parliamentary groups
President of the Court of Appeal / Attorney General
President of the TGI / Attorney General
Barrister,
Judicial Union / Union of Magistrates /
Magistrates Unit SNM-FO
Simonnot, journalist


REFLECTION ON THE PRINCIPLES OF THE REFORM OF INDEPENDENCE OF JUSTICE AND ITS TWO CAMPS


Part 1: The purpose of this reflection
The media are announcing a reform of the constitutional articles establishing the independence of the judiciary.

All French and especially the most vulnerable are concerned by this reform.

Some data attract attention:
1- France needs a judiciary whose moral and professional authority is indisputable in France as well as in Europe and in the world.
2- Public disqualification of magistrates is primarily the effect of their moral and political corruption.
3- Nothing justifies refusing to the magistrates the constitutional means of a good justice.
4- The first principle of good justice and reputation is its independence.
5- Such a reform requires its authors to distinguish the future of the judiciary from what they think of judges.

The purpose of the following reflection is to explain the reasons for this reform as they appear in the public debate and to explain the two orientations that are manifest in this debate.

The plan is:
1- The object of this reflection, p.1
2- Reform, p.2
3- The self-p.3
4- Democracy, P.8
Conclusion, p.9

Part 2: Reform
2) – 1958
Since the 1958 Constitution, in line with the preceding provisions, the Independence of Justice is placed under the authority of the Executive Power elected by universal suffrage, the President of the Republic, whose constitutive function is to be the "guarantor of independence of the judicial authority"

To this end, he is "assisted" by a technical body known as the "Superior Council of the Judiciary" (CSM).

Justice is then the "Judicial Authority" of the Fifth Republic.

The reputation that has been built up for him to be justice to orders is superimposed on the weakening of the Executive and Legislative powers, of the Politics, the claim by the population of a participation in what concerns it, the public role which has become a major law.

The 1958 device based on the supremacy of political power, known as the executive power, in the state is thus made incomprehensible, ineffective, unsuited to globalization.

3) - The two demands of a reform

This reform therefore faces two requirements:

1- The executive power must exercise its function of political representative of the French people wherever it is necessary, including within the judicial precincts.

On December 8, 2017, the Constitutional Council decided that:
"Article 1. - The words "and under the authority of the Keeper of the Seals, Minister of Justice" in the first sentence of Article 5 of Ordinance No. 58-1270 of 22 December 1958 on the Organic Law relating to the Statute of the  judiciairy are in accordance with the Constitution".



It thus reinforces the legal requirement of the presence of the Executive in the work of the Judicial Authority.

2- Justice must renew its authority by reassessing its relationship to the Executive Power.
It is on this point that the Reformation bears.

Part 3- The inter-self

4) - Reforms in progress
As a matter of course, the debate on this recomposition was organized as the obligation to increase the role of the Superior Council of Magistracy (CSM).

This hypertrophy of the CSM has been the subject of 5 reforms, reform projects or organic law since 1993.
a. None of these reforms give satisfaction to the questions they claim to solve, which relate to this renewal of the reports of the Judicial Authority to the Executive Power.
b- In return, these impasses justify the next reform and so on.

5) - The self-help initiative
This is so because this reform is preempted by a camp, that of the between-ones.

The party of particularisms, communities, corporatisms, seizes the opportunity of the obsolescence of a constitutional form which has proved its worth to try to subvert the Republic and to impose its anti-democratic, regressive rules of functioning as well as their drifts towards privatization of justice.
The privatization of justice is already publicly demanded by some magistrates and lawyers. It is present in the debates of the international treaties.

What the party of the in-between who has obviously taken the lead of the debate demands is that justice hold a "Power", a "guarantee" of statutory independence, of an organism independent of universal Suffrage.

Contrary to appearances, this party does not want to emancipate the justice of the Ministry so that it approaches the People but on the contrary to guarantee the exclusion of this one from the conduct of the judicial affairs.

He does not claim the passage of the Judicial Authority to the Judiciary because he knows that this name to be constitutional would raise the question of universal suffrage, the only legal source of power.

The independence of justice is replaced by "the independence (with respect) of political power", that is, universal suffrage.

6) - The scam
To take the population to witness the absolute inequity of the presence of the Executive in the functioning of justice, whatever the modalities, the party of the between-self mobilized the French against the capacity of the Ministry of Justice interne in individual affairs.

These "interventions" consist in asking magistrates to take into account such and such data and not to make a judgment in their place.

It is presented as a success of the law that Parliament has finally withdrawn that quality from the Department.
The Constitutional Council of December 8, 2017 gives this withdrawal a value of constitutional principle:
"12. In application of the third paragraph of the same Article 30, the Minister of Justice can not issue to the public prosecutors any instruction in individual cases. "

It associates this rule with the independence of the magistrates and the guarantee of a fair trial for the litigants:

14. It follows from all the foregoing that the contested provisions ensure a balanced conciliation between the principle of the independence of the judicial authority and the prerogatives which the Government derives from Article 20 of the Constitution.

They do not ignore the separation of powers either. "


By this article 12 of its decision, the Constitutional Council proceeds by a concern of political balance between the partisans of the total rupture of the judiciary and the policy and the tenants of the conservation of organic links between the two Powers.

It is an accommodation to which the law subordinates itself but in whose construction it is for nothing.

"Instructions in individual cases" are simply the public, official, honest expression of what the public recognizes as the various social influences in a proceeding.

It follows in particular the right of Grace that the partisans of the in-between present as an insult to the magistrates whereas it is an indispensable right of glance of the People on their work.

That is why the party of the inter-party could organize a shameless populist campaign aimed at assimilating "interventions" as a support for the privileged to the detriment of the forgotten oppressed.

Of course governments are primarily on the side of the powerful. I can testify to that.

The fact remains that in a judicial procedure the "politicians" are the only legal force capable of dealing with the possible feudal or even criminally criminal policies of magistrates. I can also testify to it.

a- In 1764, without the capacity of the King "to intervene in individual affairs", Calas would never have been rehabilitated.
b- In 1793, the knight of La Barre was rehabilitated by the Convention against the decision of the magistrates.
b- In May 1968, without the government's ability to compel judges to release detained students, the magistrates would have set the country on fire only to satisfy their corporate vanity.

I do not enter the polemics of current facts, but nothing, absolutely nothing, has changed, and that in no democratic country of the world.

The most vulnerable people are primarily affected by this capacity.
a- The mentally handicapped are in dire need of these "interventions" of the Politics to force the magistrates, from the Headquarters as well as the Prosecutor's Office, the lawyers, to stop using them like cattle of negotiation between the State and the criminal social networks for the benefit public installation of theses networks.
b- By this judicial policy the mentally handicapped are 30% of the prisoners.At night, in Fresnes, the prisoners are kept awake by the cries of the disabled.
C. The incarceration of the mentally ill is a crime which comes under the Nuremberg jurisprudence.

The least we can say is that the abandonment of these "instructions" is in no way a "guarantee" of democracy, independence, equity.

6) - The CSM
The ruling party of the inter-party organized its ideological takeover of the debate on the independence of justice by identifying it with the debate on the independence of the CSM.

The CSM suddenly becomes the bulwark of Liberty in the face of the political oppression of which justice should be separated.

The goal is to transfer all the prerogatives of appointment, management, line, intervention, devolved to the government to this black hole of corporate executives.

In fact, what the various reforms, completed or aborted, the CSM indicate is precisely the impossibility for this body to be anything other than a fair grip the special interests of managers and their corporatist groupings.

The ferocious corporatist conflicts between the magistrates and the bourgeois laity for the domination of the composition of the CSM should not obscure the fact that the main aim which emerges from the accumulation of reforms is the purification of the CSM from the presence of universal suffrage and therefore the people.

The appointment of the members of the CSM by the Presidents of the Executive and the Legislative Power who proceed by universal suffrage is considered to be too democratic, popular or even messy.

It follows:
Act of 1993:
The judges of the Council are elected by their peers and no longer appointed by the Executive and Legislative Powers.
Act of 2008:
a- The President of the Republic no longer chairs the Council.
b- The magistrates become a minority.
Bill 2013:
a- Lay figures, not magistrates, would be designated by "independent authorities of political power".
b- The magistrates would become majority again.
2016:
a- An organic law puts an end to the appointment of attorneys general in the Council of Ministers.
b- August 2016: the Superior Council of Magistracy excludes women from the appointment to the ten positions of First President to be filled.
We went from a place of Prince's Council to a place of governance "independent of political power".

It's only a beginning. The People being eliminated, justice becomes a booty whose victors dispute the distribution and the domination.

This feudal regression of the organization of the judiciary will accompany such a regression of the law.

The organization of the French judiciary by the representatives of judicial and lay corporatisms will succeed in depriving it of any international authority other than representing the clan interests of the French ruling classes.

The plumitives gargle of the incontestable quality of the personalities elected by the judicial body or designated by the Powers or tomorrow by the private organizations known as "independent of the political Power".

All dictatorships have an indisputable personality at kilometer.

What makes the difference between Royal Finance and Public Finance is not the quality of the people who compose them; they were the same.

In one case, these same people subordinated themselves to feudal corporatism and in the other they imposed the general interest.

Part 4: Democracy

7) - The constitutional principle
Constitutional principles provide the rules for a democratic recomposition of the constitutional status of justice.
a- The independence of the justice can be granted, recognized, guaranteed, only by the Sovereign, that is to say the People, the Nation.
b- The "Guarantee" by the indirect universal suffrage of the 1958 Constitution is no longer recognized, it replaces the "guarantee" by direct universal suffrage and the magistrates are then "representatives of the People".
c- Justice becomes a "Judiciary".

This reform would make it clear that lawyers contribute to the exercise of justice, that mental patients come out of medicine, that the 1945 ordinance distinguishing adults from minors is a constitutional principle.

8) - The foundation of the Judiciary
Over the centuries, the French judiciary was organized from the primacy of a court called since the Revolution: the Court of Cassation.

1- It is therefore this judicial Parliament which must be elected by universal suffrage and parity of the sexes.
a- It has thus sovereignly the constitutional and legal capacity of the appointment of all the magistrates, the Headquarters and the Public Prosecutor, the Directors of the judicial administrations, to rule on their careers, of the Direction of the Judicial Services, to form Chambers disciplinary.
b- There will no longer be an obstacle opposable to the political Power to the exercise of its responsibilities.

2- In the same way, the Court of Cassation would have powers to examine the constitutionality of the laws currently devolved to a Constitutional Council.
a- This one offers no other professional guarantee than the good will of its members which can not justify their presence.
b- The Constitutional Chamber of the Court of Cassation could be the subject of a special list of electors.

9) – Conclusion
There is no need to oppose the Powers between them. On the other hand, it is necessary to respect their course of installation.

From there, their conflicting entanglements can find stable and useful solutions.

The condition for democratic reform is to reject neither the people nor their elected representatives.

Marc SALOMONE




Aucun commentaire: