Right of justices of the peace to stand for election to the European Parliament.
Status of justices of the peace
RULING Nº 250/2009
18 of May of 2009
Justices of the peace are judges who, to the extent that they administer justice in the name of the people, perform a jurisdictional function. Even though they are not covered by the status which the Constitution affords to judges, they are subject to the rules on impediments and suspicions which the law lays down for the latter. Thus, although the general constitutional rule governing access to public office is freedom of access for all citizens, it is justifiable for justices of the peace to be subject to the same restricted access to elected offices as that applicable to the judges of the courts of law. This means that a justice of the peace’s wish to be included on a list of candidates for election to the European Parliament should be denied.
An appeal was lodged against a Constitutional Court Ruling which rejected a political party’s proposed list of candidates for the elections to the European Parliament, on the grounds that one of the candidates, who performed the functions of justice of the peace, was not eligible.
The Constitutional Court believes that the Constitution expressly defines magistrates’ courts as a category of court, and that the fact that their actual existence is optional does not invalidate the constitutional provision that they be included in one of the various categories. When it characterises the jurisdictional function, the Constitution defines the courts as “the bodies that exercise sovereign power which possess the responsibility to administer justice in the name of the people”, and goes on to add that, “In administering justice the courts shall ensure the defence of those citizens’ rights and interests that are protected by law, repress breaches of the democratic rule of law and rule on conflicts between interests, public and private”.
When interpreted in conjunction, these constitutional precepts mean that justices of the peace administer justice in the name of the people and ensure the defence of certain rights and interests that accrue to citizens and are protected by law, thereby performing what is undoubtedly a jurisdictional function. This in turn causes magistrates’ courts to be included within the jurisdictional order and organisational structure. The legislation which provides for the organisation, competence and modus operandi of the magistrates’ courts says that the “general principles” for this category of court include the principles that “the work of justices of the peace shall be designed to permit the civic participation of the interested parties and to stimulate the just resolution of disputes by agreement between the parties”, and that “the procedures in magistrates’ courts shall be designed in accordance with, and guided by, principles of simplicity, appropriateness, informality, orality, and absolute economy of procedure”. However, the only significance of this in the present case is that it implements that which the ordinary legislative authorities see as the quid specificum they emphasised when they decided the organisation, competence and modus operandi of these courts. Magistrates’ courts hand down decisions in the conflicts in relation to which they are competent, on the basis of the application of the same rules as those applied by other categories of court with the competence to hear the same questions of law; and they are only not subject to criteria of strict legality if the parties so agree and the value of the suit does not exceed half the maximum limit on the monetary value of cases that can be brought before the courts of first instance, when they can take decisions based on judgements of fairness.
It is a fact that justices of the peace are not covered by the status which the Constitution affords to judges, who are formed into a “single body” and are “governed by a single statute”. Apart from anything else, this is because justices of the peace are appointed for a period of three years by the council which monitors the creation and installation of justices of the peace and which also has disciplinary authority over them. However, they perform jurisdictional functions, not on a merely occasional or sporadic basis, but constantly for as long as their appointment lasts. This means that what we have here is a situation which, in constitutional terms, justifies the decision by the legislative authorities to restrict the right of access by justices of the peace to public office by laying down the causes of ineligibility needed to “guarantee electors’ freedom of choice” and “lack of bias and independence in the performance of their offices”.
These necessary “guarantees of independence” must function “in every hypothesis applicable to the exercise of jurisdictional power”.
This is why, whatever the configuration of the status afforded to “justices of the peace” – a configuration that possesses a variable geometry in comparative legislative experiences (such that, in Spain, for example, they are almost entirely subject to the rules governing “judicial magistrates”, whereas in Italy the status of “honorary magistrate” is different from that of the “ordinary magistrature") – the configuration established by the Constitution means that there must always be provision for a body of measures designed to guarantee the independent performance of such functions. This is the “ratio of the rules that establish causes of incompatibility with the performance of certain functions, which, as a rule, is derived from the need to prevent possible conflicts of interest in order to ensure the impartiality of the public authorities and, in the specific field of the jurisdictional function, the requirement to protect both the image and the substance of judges’ independence, whichever category they may belong to”.
To the extent that it concerns the right to take part in politics, the constitutionally permitted restriction on the fundamental right of access to public office does not mean that everyone who may be subject to that restriction, because there is a situation which justifies it and is provided for by the Constitution, must possess the same legal status.
It is important to bear in mind that the forms of ineligibility associated with people who hold offices that entail the performance of a jurisdictional function also presuppose acknowledgement that occupying such offices can lead to the imposition of an electoral condition that potentially restricts the free exercise of the right to vote.
The circumstance that sitting judges may be subject to different frameworks created by different statutes does not prevent them from being subject to identical restrictions on the fundamental right of access to public office, on condition that in any such situation the reasons that justify the restriction in constitutional terms apply.
The Constitutional Court thus concluded that it should deny the appeal and confirm that the candidate was ineligible to stand for election.
The Ruling includes three dissenting opinions. Their authors argue that there is no ineligibility in this case. They say that when it comes to providing for cases of ineligibility, inasmuch as that which is at stake is a restriction on the fundamental right of citizens to take part in political life – a right that is of the greatest importance to the genuineness of the democratic system – not only is it intolerable to resort to an interpretation that extends the categories of ineligible persons or to any analogy in that process, but, in the event of any doubt, the recognition of eligibility must prevail. It is also argued that even if magistrates’ courts are characterised as courts, and their work is included in the definition of the performance of the jurisdictional function, this must not necessarily lead to the recognition of ineligibility that is at stake in this Ruling. Indeed, there are members of true courts who perform jurisdictional functions and to whom it is not appropriate to apply the qualification “judges performing jurisdictional functions”, which generates ineligibility (for example, the jurors in a jury court, the social judges in minors’ or labour courts, the arbiters in arbitration tribunals, be they permanent or ad hoc, and be they optional or required). Another argument, which one of the dissenters considers decisive, is that the incompatibility rules that are subsidiarily applicable to justices of the peace are those governing the civil service and not those governing judges, and this means that the prohibition on engaging in party political activities of a public nature is not applicable to justices of the peace. Given that there is no parallel prohibition in the civil service rules governing incompatibilities – particularly as regards senior civil servants – the author of the dissenting opinion considers that it is not possible to sustain the argument that justices of the peace should be denied the right to perform party political functions of a public nature, particularly those involving belonging to the governing bodies of a political party, because this would constitute a restriction on the exercise of fundamental rights for which the law makes no provision. It would be entirely incongruent to accept that a justice of the peace can publicly perform the functions of chairman of a political party, but not stand as that party’s candidate at any election.
One of the dissenting opinions also points out that magistrates’ courts do not describe themselves as courts of law, but position themselves outside the Portuguese judicial organisational system as laid down by the Constitution and the Law governing the Organisation and Operation of the Courts of Law. According to the author of this opinion, the relationship between the magistrates’ courts and the courts of first instance is not one that would limit the former’s competence; instead, the magistrates’ courts are an alternative means of resolving certain disputes, and have neither taken over the competences of the judicial courts, nor replaced them, but rather belong to the category of conflict-resolving courts whose existence is optional. Nor is the Statute governing Judges applicable to justices of the peace, because they perform an office that is not jurisdictional. Furthermore, when it comes to their duties and rights – particularly that to remuneration – they are subject to the rules governing the civil service and not those governing judges.
On this subject, also see:
- Ruling no. 231/2009 of 12 May 2009.
- Ruling no. 364/91 of 31 July 1991.
- Ruling no. 532/89 of 17 November 1989.