Legislative Confrontation, Train Clash between the Chamber of Deputies and the Senate of the Republic regarding the choice of the Ombudsman, His Substitutes and Deputies

By Carlos Manuel Mesa

Why did the Chamber of Deputies not comply with the Senate's observations? Why do you say that the Senate does not have constitutional, legal and regulatory support? What is your return performance is inappropriate? Why do you express that the action of the Senate implies a breach or abandonment of its exclusive functions? Was the Senate of the Republic prevented from Controlling the Legality of Resolution No. 00146, of March 23, 2021, as the Chamber of Deputies maintains in its report? Why do they threaten the Senate with proceeding to submit to the Supreme Court of Justice the shortlists to elect the Ombudsman, his Alternates and Deputies?

On May 5 (05), 2021, the Special Commission of the Ombudsman of the Chamber of Deputies of the Dominican Republic issued a Report on the Resolution Returned by the Senate of the Republic of the Ternas for the Choice of the Ombudsman , Their Substitutes and Their Deputies, modifying Resolution No. 000146, of March 23, 2021, and that it was returned by the Senate of the Republic through official communication 000082, of April 7, 2021 due to "constitutional and legal inconsistencies."

This report reads as follows: “The Chamber of Deputies, through the Special Commission of the Ombudsman, began on May 28, 2019, a rigorous evaluation process for the conformation of the hot springs that would be referred to the Senate of the Republic for the election of the Ombudsman, his alternates and his deputies. In the exercise of the powers conferred by the Constitution of the Republic and Law No. 19-01, of February 1, 2001, which creates the Ombudsman, modified by Law No. 367-09 of December 23 of 2009, in the session of March 23, 2021, it approved Resolution No. 00146 based on the Report of the Initiative No. 05370-2020-2024-CD, rendered on the occasion of the initiative ”.

They continue to state that: “..this Chamber sent the Senate of the Republic the accreditation of the shortlists for the election of the Ombudsman, two alternates and three deputies, however, the Senate rejected the matter basing its criteria on what they called“ constitutional and legal inconsistencies ”, in which the Chamber of Deputies incurred exclusively in what concerns the shortlist of the deputies and, in addition, provides to“ return ”to the Chamber of Deputies, without making the choice of the Ombudsman, alternates and attachments ”, as stated by the Senate in its Official Letter No. 000082, of April 7, 2021, conditioning its return to the“ waiting for the remission of the resolution in accordance with the aforementioned, in order to continue with the corresponding constitutional procedure ”.

The report also states that:… ”On April 14, 2021, in ordinary session No.16, the indicated communication was read in Plenary. In ordinary session 20, on April 22, 2021, a Special Commission was created in order to study the decision adopted by the Senate of the Republic ”.

What was the Conclusion and Recommendation of this Commission?

He concluded by stating the following: “The Special Commission empowered to study and review the return made by the Senate of the Republic of the shortlists for the election of the Ombudsman, his alternates and his deputies, after carefully reviewing and analyzing the content of Resolution No. 00146, of March 23, 2021, approved by the Chamber of Deputies, and the basis and scope of the decision adopted by the Senate of the Republic, as stated in communication No. 000082, of April 7 of 2021, the report of the Technical Office for Legislative Review (OFITREL) on constitutional and legal aspects, and by virtue of the provisions established in the infine part of Article 80 of the Regulations of the Chamber of Deputies, namely: (...) Those matters that do not deserve to have this character, will be answered in the form of communication ”. Therefore, we suggest returning the file by means of a communication that contains the following considerations:

However, the situation is complicated and worsened with the communication sent to the President of the Senate of the Republic, which, copied verbatim, states the following:

HOUSE OF DEPUTIES OF THE DOMINICAN REPUBLIC

SPECIAL COMMISSION OF THE OMBUDSMAN

Honorable

Ing. Eduardo Estrella Virella

President of the Senate of the Republic

His Dispatch .-

Honorable Mr. President:

The Special Commission empowered to study the return by the Senate of the Republic of the Resolution of the Chamber of Deputies for the choice of the Ombudsman, his alternates and his deputies, after carefully reviewing and analyzing the content of Resolution No. .00146, of March 23, 2021, approved by the Chamber of Deputies, and the basis for the scope of the decision adopted by the Senate of the Republic, as stated in communication No. 000082 of April 7, 2021. It has a well express the following considerations:

 

1) In accordance with article 6 of the Constitution, this is the supreme norm of the Dominican State, therefore, for coherence, with fullness and independence of the legal system, said hierarchy is decisive and, for that reason, according to the aforementioned constitutional provision, all persons and bodies that exercise public powers “are subject to the Constitution, the supreme norm and foundation of the State's legal system. Any law, decree, resolution, regulation or act contrary to this Constitution are null and void by law ”.

2) That by virtue of the foregoing, the normative effects of a new Constitution, as happened with the proclamation of the substantive charter of 2010, encompass a wide range of transformations of the entire system and the legal order, in such a way that it occurs automatically a de jure adjustment of any provision that has a lower hierarchy within the system is not manifestly contrary to it and the public powers are gradually responsible for detecting and expiating the unconstitutionalities that, according to the aforementioned article 6, imply the nullity of full right.

3) That in the same vein, it is the doctrine on the existence of legal norms and systems that best illustrates these normative clarifications, because if on the one hand, by legal system it is understood: “Set of legal statements (which constitute the axiomatic basis of the system) that contain all its consequences ”and on the other hand it is clear that it is not a static system“ and that a dynamic system of norms is not a set of norms, but a sequence of sets: at each moment temporary, the set of norms that belong to the system is distinct (…) there should be no confusion regarding what the 2010 Constitution produced, in relation to Law No. 19-01, of February 1, 2001, which creates the Ombudsman, modified by Law No. 367-09, of December 23, 2009.

4) That in the same order of these ideas, it is evident that the Plenary of the Chamber of Deputies decided with strict adherence to the provisions of article 83, numeral 3, of the Constitution, the Regulations and the Legislative Procedure Manual, choosing and accrediting before the Senate of the Republic the shortlists in order and number that are constitutionally allowed.

5) That it is necessary to highlight that Law No. 19-01 of February 1, 2001, was modified in 2009, with the sole purpose of: a) Making the special majority (2/3) parts of the enrollment of both parties more flexible. chambers) so that from now on it will be 2/3 of the legislators present in the corresponding session; b) Expressly exclude the choice of accreditation of alternates; and c) Limit the number of those attached to the Ombudsman to no more than two.

6) That in this sense, in the constitutional reform of 2010, the legislator was entrusted with the power to nominate and accredit no more than two substitutes and no more than five deputies of the Ombudsman and, at the same time, with the purpose To envision adaptive scenarios in the State where there is no better interpreter than the legislator who is directly in contact with the reality in which he lives, it is indisputable that the constituent left the decision of how many substitutes and deputies to his will, as long as when there are no more than two or more than five, they would be the ones accompanying the ombudsman.

7) In this sense, what the Senate of the Republic calls "constitutional and legal inconsistencies" is nothing more than a correct exercise of connection between legal language and reality, because if the constituent had not wanted to introduce any change in the number of proposals in the selection of the Ombudsman, his alternates and his deputies, then he would not have introduced this precision on the threshold of choice that contemplates a maximum of two alternates and five deputies and, consequently, attributes to the legislator the power to propose, correspondingly, one to two alternates and one to five deputies.

8) That this has an obvious purpose, taking into account the logic of the deadlines for the selection of the Ombudsman, his alternates and his deputies: once the evaluation process and conformation of the shortlists that will be proposed have been exhausted, that of the maximum number of two substitutes and five deputies is not reached, the Chamber of Deputies was not seen