Leading the debate. Regarding the recent law on the question of trust

“Theses are usually opinions presented in such a way that they invite argued controversy. However, the nine theses that want to restore the courage to educate announce a happy message, obvious truths, which should be understood by anyone who is not malicious or ideologically indoctrinated “
(“Against authoritarian pedagogy”, Ernst Tugendhat)
 “Ghosts of pleading geniuses seeking darkness, terrified of their fellow man”
(“Everything that is expressed”, Basilio Fernández)

Without wishing to be very reflective, I would like to begin by stating that most of the debate around Law 31355, which interprets the content of Articles 133 and 134 of the Constitution, seems simply unnecessary. I say this above all, as a result of the heated defense of some lawyers and politicians to maintain that Congress would interpret the Constitution. Here, as does the German philosopher Tugendhat, we should ask ourselves against whom are the authors of these arguments directed? [1]

And it is that there does not seem to be anyone who, with a minimal basis, takes the opposite position; namely, that it denies the possibility that Congress can interpret the Constitution. The debate then, at least at that extreme, is free.

What matters, if I am allowed to redirect the discussion, is if Congress has the “last word,” that is, if the interpretations of Congress are final, to the point of being able even to correct the Constitutional Court, which already in a sentence Previous – the famous ruling of dissolution of Congress – has interpreted Articles 133 and 134 in a sense opposite to that of Law 31355 [2].

However, this topic is never up for discussion. And perhaps it is because the answer is also very evident. Indeed, as indicated in article 201 of the Constitution: “The Constitutional Court is the control body of the Constitution.” In other words, that he (and not Congress) is the last and most excellent interpreter of constitutionality. Therefore, although Congress can interpret (nobody disputes it), an interpretation of its that seeks to overcome the provisions of the TC will be simply invalid.

Now, where this discussion ends, another begins about the best interpretation of Articles 132 and 133. On this issue, the arguments are more varied. Still, generally speaking, those who defend the Law usually affirm that the Court’s interpretation of Constitutional is wrong for being too permissive with the Executive.

However, this debate, which nevertheless seems to be more profitable than the first (since it is always healthy to discuss the decisions of the TC), is just as unnecessary to justify the validity of the Law, at least if we are strict with the above: that the TC, and not Congress, has the last word to interpret the Constitution. Thus, it is absurd to discuss an interpretation, starting from the assumption that it will “correct” that of the Constitutional Court.

Another thing is that Congress tries to change the Constitution to set new limits to articles 133 and 134 (and this, even, as long as it falls within what is “constitutionally possible,” that is, that it does not contradict certain principles of the nucleus of the Constitution as the principle of balance and separation of powers). But what cannot happen – I insist – is that a new interpretation is intended to be superimposed on what the TC has already established. If our budget to discuss is this, the debates on i) if Congress can interpret or ii) if the interpretation of Congress seems better is without basis.

Of course, there are alternative interpretations. Of course, you can disagree with the “official position,” but the idea of ​​having a Constitutional Court is precisely to have a closing body for these controversial discussions. Is the model debatable? But of course, the literature has criticized, for example, the highly concentrated centrality of the Constitutional Courts, which reduce the interpretation of the Constitution – the rule of fundamental agreements – to the understanding of such a small group of magistrates, who are not elected even by citizen vote. It has also been questioned whether it is really “democratic” that the Court’s decisions are so sharp and closed. It seems as if the Tribunal is that great emperor who can never be contradicted. With him, as we see, Roma locuta, finite cause.

Along these lines, currents such as the so-called dialogical constitutionalism are working on proposals that even allow questioning the constitutional courts to give more openness to the binding interpretation of the Constitution. For example, in Canada, there is the notwithstanding clause (“notwithstanding” clause), which allows the Legislative Power to extend the validity of a norm for a period of up to five years, “despite” that it has been considered unconstitutional [ 3]. That is, the Legislature may, in some instances, insist on its interpretation, despite the refusal of other interpreters, which allows broadening the discussion, not concentrating it only on one Court.

But, of course, those who defend this Law do not seem to want to discuss such a reform; instead, they try to go over what is already established. And at least as things are, the Law that Congress has approved is unconstitutional for contravening the content of the question of trust (which is none other than the one interpreted by the TC). This is the central issue, and at least for practical purposes, the rest is flatus vocis.


[1] The German philosopher Ernst Tugendhat wrote an article in 1978 in response to Hermann Lübbe’s controversial manifesto “9 theses. Courage to educate”Notwithstanding the central issue, what stands out from the dispute is TuTugendhat’sosition, which, rather than discussing directly with his contender, is dedicated to demonstrating that the problems he offers for debate are sterile because, at various ends, Lübbe is devoted to criticizing and refuting positions that no one defends.

Thus, Tugendhat understands that it is not convenient to enter a debate “u”focused” “ut is to channel it. Otherwise, we will spend efforts on a free discussion; or worse, we will end up falling into the fallacies of rhetoricians who do not want to debate; but, precisely, divert the conversation.

[2] Well, while the TC (EXP N ° 0006-2019-CC / TC) admits that the trust may relate to constitutional reform projects (FJ 199), Congress interprets that this is not possible. And while the TC accepts the factual denial of faith in exceptional cases (FJ 212), the Law limits the interpretation of any denial of devotion to what Congress expressly says. In a future constitutionality analysis, perhaps the TC can save this first opposition (by arrangement); but the second, at least in my opinion, is incorrigible.

[3]   v. GARGARELLA, Roberto (2014). “T”e new dialogical constitutionalism against the system of checks and balances.”In GARGARELLA, Roberto. For a dialogic justice. Argentina: Siglo Veintiuno Editores, pp. 119-158-

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