Dufourq, Felix E. s / Amparo.
Opinion of the Attorney General's Office. Dr. Felix E.
Dufourq started writ of amparo to ensure the security of tenure as a judge played by the National Court of First Instance Criminal Instruction No. 8.
relates has previously held other positions court and that his appointment was made by the President of the Nation in the exercise of the powers conferred by Arts. 5 and 9 of the Statute for the Process of National Reorganization.
Under the considerations expressed in the opinion delivered on the day of the date in the case entitled S. 391 "Bosch, Francisco M. s / amparo" (see this volume p. 345) understand that the submission under review can not be resolved in the exercise of judicial power that fall within this Court and is not susceptible of being reviewed the scope of their responsibilities in terms of supervision. Understanding
pose as an application for the court, as the supreme body of one of the powers State, intervene to ensure the inauguration of national judges and protect their tenure, it should be noted a factual differences between the two cases, namely that Dr. Francisco M. Bosch had been originally appointed in the manner prescribed by the Constitution while the appointment of Dr. Felix E. Dufourq not meet these characteristics, but, in my opinion, this difference is not relevant when it relates to the principles applicable because none of the petitioners is currently covered by the guarantee of tenure of judges, which enshrines the art. 96 of the Constitution. Buenos Aires, March 23, 1984. - John O. Gauna.
Buenos Aires, March 27, 1984. Views
S-372/84 proceedings in which Dr. Felix Dufourq calls, setting out the grounds that the court issue an injunction ordering the executive to refrain from applying the following procedure is to replace judges by decree, and free trade to the Criminal Appeals to refrain also to take an oath to any person who is appointed in his place in the National Court of First Instance Criminal Instruction No. 8 which is owned .
Whereas: 1 - That, as stated in the response. 88/84, issued on the record S-1650/83, this Court is competent to produce those acts of government, as head of power and supreme authority of the judicial organization in Argentina, are necessary to ensure the inauguration of the national courts, including judgments about the existence of the endowment, to the extent that it inevitably requires.
2 ° - That the validity of the rules and acts issued by the Executive Branch de facto is conditioned explicitly or implicitly, the constitutionally elected government that succeeds the recognition (doctrine of failures, v. 196, p. 5 , t. 201, p. 249, t. 204, p. 345, t. 208, p. 184, t. 211, p. 1833, t. 283, p. 76, t. 240, p. 96; t . 243, p. 265, t. 264, p. 195; t. 286, p. 62, t. 287, p. 104; t. 293, p. 665 - Rep. LAW, t. 30, p. 693, t. 38, p. 89, t. 42, p. 21, t. 47, p. 802; t. 92, p. 582; t. 97, p. 1, t. 152, p. 387; t. 974, p. 291 -).
3rd - That this principle also applies to judges appointed between March 24, 1976 and December 10, 1983, whose appointment was made outside the procedure regulated by the Constitution, which in art. 86, inc. 5 ° provides: "The President's Office appoints the judges of the Supreme Court and lower courts by the Senate."
4 ° - Already highlighted by failures, t. 241, p. 50 (Rev. LAW, v. 91, p. 152) that the consent of the Senate, which is essential for continued enjoyment of the judicial function: for a government "law" can not be extended to the merit of doctrines or interpretations of general on the validity of acts and decrees of a de facto government. A government of this nature may punish rules valid for the future but not to integrate the powers "in law."
5 ° - That in virtue of being one of the judicial branches of government, everything about your organization and keep basic importance for the existence of our system of government, importance nothing comparable to the one with the appointment of officials and business managers or ministers plenipotentiary, or senior officers of the army, so the guarantee of equality invoked unrelated to the matter under review.
6 ° - It is therefore necessary to integrate the government "de jure" with judges appointed in accordance with the directive of the art. 86, inc. 5 of the Constitution in favor of harmony of national and local powers requires the structure of the state form provided by our constituents.
7 ° - that by applying the criteria set forth in t. Failures 241, p. 151; be added that the tenure of judges elected by the 'Process of National Reorganization is limited by the reinstatement of the constitutional powers, since such appointments can not deprive the executive branch and the Senate of the powers that normally belong under the Constitution .
Therefore, and as concluded by the Attorney General, is solved: do not rise to the Petitioner and filed without further delay these proceedings. - Genaro R. Carrio. - Joseph S. Caballero. - Charles S. Fayt. - CJ Augusto Belluscio. - Henry S. Petracchi.
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