The previous post on the commission of the crime of malfeasance by part of three judges of the TC, beyond which is unacceptable that people who hold the judicial function in this way are wrong, move to some reflections on the future of this school.
First, it is clear that situation can not continue. The TC has gone beyond any kind of control and its role in our legal system in recent years, has acquired overtones that are not exactly that interfere with the democratic and constitutional order, such as spraying the res judicata claim to control the tariff policy Executive or interpret a will, it is a matter entirely unrelated to their work. A sponsored impeachment by Congress can be an effective remedy, and, at this time, absolutely necessary, but it would be just to weather the storm and not to prevent future storms.
must restore balance in the legal system and, today, this can be achieved only looking for solutions that the law provides. The radical reaction would be to remove the TC off the map through a constitutional reform, but the short history of this body has shown it can become key issues of great importance, as was the case of those courageous judges who denied the constitutionality of the "law of authentic interpretation" which in the end, served to perpetuate the dictatorship of Fujimori. At that time and, especially, when those judges were reinstated years later, played TC a responsible role because its members were aware that there are powers and limits that respect. Now we are in a situation diametrically opposed.
So what to do with the TC? Here's a suggestion: restrict his powers by limiting it to be a real negative legislator (and not positive, as has been proclaimed, which is supported by some doctrine) which deals only constitutional processes and competence, all other constitutional processes must return to the exclusive jurisdiction of the Judiciary and the Supreme Court. But the essential TC is to remove the amparo, which has become a perverse mechanism by which it has made and unmade at will, a veritable sword of Damocles for the executive, the judiciary itself, Congress, arbitration courts, universities and especially individuals.
Furthermore, it has been a dramatic situation where all disputes resolved in the CT end (this place because everything is "constitutionalized"), where the binding precedent established in Constitutional Procedural Code is used as a weapon which compels judges to the judiciary to apply to exactly what it says the TC (not knowing that the figure of Distinguishing allows the judge to depart from the precedent for justifiable reasons) and, last but not least, which has promoted the destruction of any system of sources of law, the rarely argued that the judgments of the TC equivalent to the Constitution because they concretize its precepts. This being so, it is not surprising that members of this body have said that this judge to depart from its decisions, commits malfeasance (STC Exp No. 00001-2010-CC/TC, the foundation 27).
But back to our proposal. Against it may be argued, quite rightly, that the Supreme Court, as it is now, is not capable of successfully dealing with the delivery of constitutional justice. Certainly, this body has had very large declines in its history, from an almost total submission to the dictatorship in power, until the first full casatorio, in which he demonstrated how through the application of the law with impunity can also devote discrimination and injustice . However, despite all its problems, we believe that our Supreme Court is not able to create such deep cracks in the legal system such as that created the TC.
reform the justice delivery system, which should include a renewal of many Supreme Court justices, is a process that is underway and it needs to implement the necessary mechanisms to that end, the court (the real) re- acquire the prestige and legitimacy long lost. An efficient and independent judiciary, with judges trained and committed to society and the protection of the rights of individuals and, above all, a Supreme Court at the height of the circumstances, may well protect the Constitution as it should. Do not forget that a country can live without a Constitutional Court, but never without a Judiciary.
the end, you decide, the Congress-if-only dare hope that is the best in the not too distant future.
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