TC Judge in Sunedu case: We made a decision on the constitutionality of the law, which is beyond the intention of Congress

Magistrate of the Constitutional Court, Cesar Ochoa Cardic, referred to the issued ruling declaring the constitutionality of the university counter-reform law and stating that the TC’s decision could not be based on the intentions that Congress might have had at the time of filing the lawsuit. For the tribune, procedural fraud was out of the question, but the legitimacy of those who filed this appeal could be questioned.

“There were several innovative situations here. The law allows congressmen to declare unconstitutionality. This is not a problem of procedural fraud, but of legitimacy, because procedural fraud is when there is fraud, a procedural trick and there is no catch (…). This legitimacy can be controversial. The doctrine says that those who voted by the majority could have legitimacy for the law or only the minority that voted against this law. But our Rules do not make this distinction. I brought it up with a lawyer (from Sunedu, Luis Huerta) and he didn’t raise any issue of legitimacy. And we decided to touch on this topic, because on the same issue there is an amparo process based on the jurisprudence of the Constitutional Court. And learning about this situation, forced us to declare the constitutionality of the law, in addition to the intention that congressmen may have who sued,” he said. News extension from PTR.

“I can’t assume dishonesty. The law does not presuppose bad faith. What we have done is analyze the problem of legitimacy and analyze that there is a process between both parties on the same issue regarding the jurisprudence of the Constitutional Court. And we spoke to settle this discussion on this issue,” he added.

On the other hand, Ochoa Kardić mentioned that even if the counter-reform law were declared unconstitutional, the repealed law could not be replaced, but rather a regulatory vacuum would be created that could last for years while waiting for a new law. .

“There are two methods of controlling constitutionality. One of them is the fighter beam: we declare unconstitutional and the law becomes invalid, which does not mean that the previous law is resurrected. Even if we declare unconstitutional, the Suneda I law is not revived. A regulatory vacuum is created that can last for years, and a new law has to be passed. In order to avoid a regulatory vacuum, what is called the horror of a vacuum, to avoid a black hole, we have arrived at the constructive control formula.; that is, to modulate the operation of the law. That is why we spoke in the sense that those who are on the board of directors of Sunedu do not show any interest from the moment they enter a public function, ”he emphasized.

Sunedu board representatives may not respond to specific interests

Judge Ochoka ruled on the significance of the decision taken by the Constitutional Court and announced that the decision has not yet been published due to a single vote of one of the tribunes. However, he indicated that this was seen as “modulating” the counter-reform law, pointing out that Sunedu’s board representatives would not be able to respond to certain interests.

“The verdict has not yet been published because there is a one-man vote of the magistrate, and out of respect for this magistrate, we have been waiting for some time for him to give us a vote – that’s seven days – for the publication of the entire verdict. sentence text. And what does it establish? It is a verdict which, while proclaiming the constitutionality of the law, modulates its effect. With respect to this matter, whether the representative members on the Board of Directors of Sunedu are a judge and a party. What we are establishing as a constitutional interpretation is that these representatives, members of the Board of Directors, once they are sworn in and in office, they will no longer be representatives of any specific interests. He must act independently and impartially, in accordance with the Constitution, which establishes that the public function is in the service of the nation and cannot be the representative of any private interests, ”he said.

However, when asked about the consequences that this accuracy might have, given that in practice it decides nothing, the tribune noted that he could not anticipate the actions of these persons and that the law could not be considered bad faith.

“The text of the law states that they are representatives of legal entities. We say that they can no longer be representatives. This is now in accordance with Article 39 of the Constitution and the Code of Ethics for Public Offices. In other words, this must be understood in such a way that they represent the interests and it has been somehow proven that they are liable and have a conflict of interest according to the law. We cannot go any further or prejudge what a person is because they are selected, appointed or nominated by the university will act contrary to the law,” he concluded.