Cordier v. Council of State
| Cordier v. Council of State | |
|---|---|
| Cordier contra el Consejo de Estado | |
| Case details | |
| Court | High Court of Justice of Nouvelle Alexandrie |
| Case number | HCJ-1751-0188 |
| Citation | 46 N.A.L.R. 91 (1752) |
| Filed | 14.III.1751 AN |
| Argued | 9-10.II.1752 AN |
| Decided | 27.V.1752 AN |
| Parties | |
| Petitioner | Mathilde Cordier, Presiding Justice of the Federal Capital District Court |
| Respondent | Council of State |
| Petitioner's counsel | Martina Vásquez |
| Respondent's counsel | Solicitor General Henri Vasseur |
| Amicus curiae | Federal Legal Association of Nouvelle Alexandrie Royal University of Parap Faculty of Law |
| Holding | |
| The words "or loss of His Majesty's confidence" in the tenure provision governing the judges of the Federal Capital District Court, in Section 8 of the Regional and Local Government Organization Act, 1699, are repugnant to the Proclamation of Punta Santiago and void from the moment of judgment. Judges are subordinate only to the Proclamation and the law, and a judge other than a Justice of the High Court may be removed only by the judgment of a higher court; tenure terminable at the pleasure of the Crown cannot stand with Articles 49 and 50. | |
| Disposition | Removal of the petitioner set aside. The words "or loss of His Majesty's confidence" declared void under Article 54 and severed under Section 18 of the Act; the remainder of the tenure provision upheld. |
| Court membership | |
| Vote | 9-0 (unanimous) |
| Majority opinion | Chief Justice Élisée Pierrat |
| Joined by | Associate Justices Dominique Rousseau, Elena Vidal, Illapa Mayta Capac, Sofia Valdez, Jean-Pierre Moreau, Roberto Mendoza, Adèle Fontaine, Marcus Thorne |
| Case history | |
| Prior history | Removal of the petitioner effected by instrument of the Council of State under Section 8 of the Regional and Local Government Organization Act, 1699; petition challenging the constitutionality of the removal filed directly with the High Court under original jurisdiction |
| Laws and precedents | |
| Laws cited | Proclamation of Punta Santiago, Articles 43, 49, 50, 54 Regional and Local Government Organization Act, 1699 |
| Proclamation articles | Article 49 (judicial powers); Article 50 (removal of judges); Article 43 (separation of judiciary and executive); Article 54 (voidness)
|
| Related cases | Marquez v. Council of State (1751) In re Detentions at Fort Esperanza (1751) Citizens for Constitutional Rights v. Council of State (1698) |
| Classification | |
| Areas of law | Constitutional law, judicial independence |
| Keywords | Judicial independence, security of tenure, separation of powers, removal of judges, Federal Capital District Court |
Cordier v. Council of State, 46 N.A.L.R. 91 (1752 AN), is a decision of the High Court of Justice of Nouvelle Alexandrie holding that a judge may not be removed from office at the pleasure of the Crown. In a unanimous opinion authored by Chief Justice Élisée Pierrat, the Court struck the words "or loss of His Majesty's confidence" from the tenure provision governing the judges of the Federal Capital District Court in the Regional and Local Government Organization Act, 1699, holding the phrase repugnant to Articles 49 and 50 of the Proclamation of Punta Santiago and void under Article 54. The offending words were severed under the Act's own severability clause, leaving the remainder of the tenure provision, which secures the judges' offices during good behavior to the age of sixty-five, in force.
Decided in the judicial term that followed Marquez v. Council of State, the case is regarded as the Court's principal statement on the security of judicial tenure and the independence of the courts that sit below the High Court. It is frequently paired with Marquez as the structural counterpart to that decision's protection of individual liberty.
Background
The Regional and Local Government Organization Act, 1699 vests the judicial power of the Federal Capital District in the Federal Capital District Court, composed of a Presiding Justice and four Associate Justices appointed by the King on the recommendation of the Mayor of the Federal Capital District and the practitioners of the legal profession. The tenth paragraph of Section 8 of the Act provided that the judges of that court "serve for good behavior until the age of 65 or until their death, resignation, or loss of His Majesty's confidence."
Mathilde Cordier was appointed Presiding Justice of the Federal Capital District Court and presided over the court during the internal-security period associated with the Federal Law Enforcement Enhancement Act, 1747 and the suppression of the Nouveau Wave. During the administration of Premier Juan Pablo Jimenez, Cordier ruled against the government in several matters arising from the security measures of the period, declining to give effect to detentions she found unsupported by law. The Council of State afterward advised the Crown that the Presiding Justice had lost His Majesty's confidence, and Cordier was removed under the tenth paragraph of Section 8.
Petition to the High Court
Following the Court's decision in Marquez v. Council of State (1751 AN), Cordier petitioned the High Court of Justice directly, invoking its original jurisdiction over the constitutionality of Acts of the Cortes Federales under Article 52. She sought a declaration that the removal mechanism of Section 8 was void and that her removal was without legal effect.
Arguments
Petitioner's arguments
Counsel Martina Vásquez argued that the courts of the Federation, and not the High Court alone, are protected by Chapter VI of the Proclamation. She contended that Article 49 makes the judges "only subordinate to this Proclamation and the law," and that a tenure terminable on the Crown's confidence makes the judge subordinate instead to the will of the executive. She further argued that Article 50 permits the removal of a judge other than a Justice of the High Court only by the judgment of a higher court, and that it forbids even the Cortes Federales from removing an individual judge by Act. If the legislature could not remove Cordier directly, she argued, the Crown could not do so at pleasure through a condition the legislature had written into her tenure.
Respondent's arguments
Solicitor General Henri Vasseur, for the Council of State, argued that the Federal Capital District Court was a creature of ordinary statute rather than of the Proclamation, and that the Cortes Federales, having created the court, was free to set the terms on which its judges held office. He urged that the confidence condition was part of the tenure the legislature had granted and that the petitioner had accepted appointment subject to it. He argued in the alternative that the assessment of confidence belonged to the political branches and was not a question suited to judicial review.
Opinion of the Court
Chief Justice Pierrat, writing for a unanimous Court, rejected the respondent's distinction between courts created by the Proclamation and courts created by statute. Article 49 vests the judicial power in "the courts" without qualification, the opinion held, and provides that the judges of those courts answer to the Proclamation and the law alone. "A court does not hold its independence from the instrument that creates it," Pierrat wrote, "but from the Proclamation, which binds the hand that creates and the hand that would remove."
The Court held that Article 50 sets out the exclusive means by which a judge may be removed. A judge other than a Justice of the High Court may be removed only by the judgment of a higher court, and the same Article provides that an Act of the Cortes Federales to remove an individual judge is void. A power to remove a judge upon "loss of His Majesty's confidence," Pierrat reasoned, accomplished by executive determination what Article 50 forbids the legislature to do by statute, and accomplished it without the judgment of any court. The condition was therefore irreconcilable with the second paragraph of Article 49 and the first paragraph of Article 50.
The Court rejected the argument that the petitioner's acceptance of office cured the defect. A judge cannot consent to a tenure the Proclamation forbids, the opinion held, because the protection of tenure exists for the benefit of those who come before the court and not for the judge alone. The independence of the judge from the executive, Pierrat wrote, "is a promise made to the litigant, that the judge who hears the cause will not be one whose office depends upon the favor of a party to it."
The words "or loss of His Majesty's confidence" in the tenth paragraph of Section 8 were declared void under Article 54 from the moment of judgment, and severed under the severability clause of Section 18, leaving the remaining grounds of tenure, good behavior, the age of sixty-five, death, and resignation, in force. The removal of the petitioner was set aside.
Aftermath
Because Article 54 renders an unconstitutional provision void at the instant of judgment, the confidence condition ceased to have effect immediately, and the tenure of the judges of the Federal Capital District Court stood thereafter on good behavior alone. Cordier was restored to the office of Presiding Justice. The Montero administration complied with the judgment and did not seek to restore the condition by amendment.
Cordier is read together with Marquez v. Council of State as the two pillars of the Pierrat Court's constitutional jurisprudence, the one securing the liberty of the citizen against the state and the other securing the independence of the judge from the Crown. That the justices who had divided in Marquez joined without dissent in Cordier was taken to mark judicial independence as common ground across the Court, apart from the contested questions of security and emergency power. The decision is cited as authority that the protections of Chapter VI of the Proclamation extend to the whole of the Federation's judiciary, and not to the High Court alone.
