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