The jurisdiction of the administrative judge passes to the anti-union behavior of military administrations
(by Cleto Iafrate, General Secretary SIM Guardia di Finanza) What happened yesterday in the Defense Committee in the Chamber is a very serious fact because the Alloy, Together with Forza Italy and other opposition forces have denied workers in uniforms the protection that the law recognizes for other categories of workers. They have established that disputes brought by military trade unions are referred to the administrative judge, rather than to the ordinary judge, as required by the Workers' Statute.
The progenitor of the administrative judge
The judges of the highest body of administrative justice are called "Counselors" on the grounds that they were originally the "Counselors of the King". The body, born in 1831, was intended to assist and advise the sovereign. To be precise, the forerunner of the organ is considered the Consilium nobiscum residens of the Duchy of Savoy, regulated by Amedeo VIII in 1430. Presided over by the Duke himself, he had the ability to replace the Prince in the government of the country and the most important nobles of the Duchy were part of it. He had various administrative and judicial skills. The latter consisted of assisting the sovereign in carrying out his function as holder of the supreme jurisdiction.
Over a century later, having deposed the King, during the debate in the Constituent Assembly on the new relations between the executive and the judiciary power, there was a lot of discussion about the fate of the "descendants of the King's advisors"And if it still made sense to keep the organism alive.
Piero Calamandrei was among those who considered the historical reasons for which the Sections of the State Council had been exhausted. The Constituent Father during the afternoon session on Thursday 9 January 1947 proposed to transfer to the ordinary Judiciary the functions that the Jurisdictional Sections of the Council of State had until then fulfilled. In other words, it intended to transform the State Council into a specialized section of ordinary judicial bodies, with the competence to resolve all disputes between citizens and the public administration.
During the debate, in order to support his proposal, Calamandrei quoted the following passage taken from a report previously drafted by the State Council itself: «To ensure the complete independence of the Council of State, an essential condition for the effective and serene exercise of the high office, it seems necessary to release the institution from any relationship of subordination and from each interference of the executive power, placing this Magistracy outside the hierarchical order of the State». And then he added: «by purely and simply keeping alive the jurisdictional Sections of the Council of State, as they are now constituted, bodies would be preserved which, by recognition of the Council of State itself, do not currently have that independence which has been considered to be an essential requirement of the judiciary. "
Calamandrei's proposal was rejected with various arguments, which can be summarized in the following three passages taken from the answer that the Hon. Aldo Bozzi gave Calamandrei:
- «if this institute has always worked well, if it has demonstrated independence, if it has contributed to maintaining legality in the public administration, there is no need to bring you such a profound renewal";
- «the State Council has always shown that it has a large one spirit of independence";
- «[If we transfer the functions of the Council of State to the ordinary judiciary] we would have a form of contamination of the judged judge who, accustomed to the rigid application of the law, should instead decide in a matter in which the evaluation of the public interest dominates ... the judges togates (are) brought by their mental conformation to rigidly apply the law even in the matter where it is necessary instead to balance its application with the assessment of the public interest, that is combining the rigidity of the judge “the ductility of the administrator"».
About "spirit of independence" is "ductility of the administrator".
In relation to the alleged spirit of independence, one cannot fail to point out that today some administrative magistrates - sometimes in non-permanent positions - have positions in the cabinets and legislative offices of the Ministries and also in the secretariat of the Presidency of the Republic, of the Presidency of the Council of Ministers. Others, on the other hand, come directly from public administrations.
One wonders: such a mixture of functions (judicial and administrative) - which according to some might even undermine the fundamental principle of separation of powers (judicial, legislative and executive) on which our Republic is based - which has repercussions on the spirit of independence of the administrative judge?
According to the same Ministry of Defense, in Italy the 95 percent of the appeals proposed by the military is rejected. This data, already alarming and anomalous in itself, must be assessed considering that in the 5 percent of appeals accepted are purely instrumental ones, that is proposed to access administrative deeds, to oblige the administration to respond to requests or to ask for compliance with a sentence. As a result, the number of successful appeals successfully brought against the Ministry of Defense is well below the 5 per cent.
As regards, instead, the greater ductility, we are sure that the public interest is realized through more administrators ductile?
Consider that "ductility" is synonymous with flexibility, flexibility and the antonym of resistance.
But flexible and flexible with respect to what interests?
Below are three examples of three moments in the life of a soldier: transfer, career and discipline.
- According to the jurisprudence of the Council of State, military transfers of authority fall «in the category of the order of the hierarchical superior and they essentially refer to a simple way of carrying out the service in the territory ». Therefore, «Returning to the genus of the orders, they are subtracted from the general discipline on the administrative procedure dictated by the 241 law and, therefore, they do not need particular motivation». A soldier, therefore, can be transferred by authority with a simple formula of style, such as: "environmental incompatibility".
It is believed that a judge who is a professional judge, less flexible than the administrative one, having to evaluate a transfer for environmental incompatibility of a soldier, would dissociate himself from such an orientation and, probably, would say to the administration: «OTHER, if you don't tell me what he is incompatible with or which environmental element he is allergic to - if you don't tell me where this 'supposed' intolerance / incompatibility comes from - I am led to suspect that with a style formula you want to get rid of an uncomfortable investigator , perhaps too scrupulous or zealous».
- And again, in case the military body determines that the "rapidity of mental processes"Of a soldier is superior to that of his parigrade, benefiting him, so, in the career progression, the judge togate, who mentally is more rigid, probably, would say:"OTHER, if you do not show me this 'supposed' greater rapidity of the processes, perhaps through the "X-RUM skull 3D", I am led to suspect that such a flattering judgment obeys more the logic of co-optation and of cordate than of merit".
"The help"In the progress phase it blackmails the promoted manager, inserting him in a vicious circle that Raffaele Cantone defined a few years ago" cono d'ombra "when he declared that"“decent”, honest and civic-minded people are unable to make a career in the public administration. They are often marginalized precisely because they have a work ethic».
- Always the judge togate, in case he finds himself deciding on the appeal of a financier or a carabiniere sanctioned disciplinarily for "long hair", unlike the ductile administrator, probably, he would say: "OTHER, if you don't tell me over how many centimeters the hair is to be considered long, I am led to suspect that the trait rules are interpreted for friends and used as a club for the enemies and that, in general, failure to typify and the extreme generality of the disciplinary rules are intended to make your heel feel constantly on the neck of the subordinate, so that no one (*) ever thinks of asserting their rights".
(*) Unum castigabis, centum emendabis.
Conclusions
Those who yesterday denied the military the jurisdiction of the labor judge in the event of anti-union behavior knows that the absence of safeguards and excessively flexible jurisprudence guarantee power blind and absolute military obedience. Not only of the infantryman or the Alpine, but also of the carabiniere and the financier. Consider that even today military orders must be challenged, possibly within the same military body: it is like telling Little Red Riding Hood to turn to the wolf rather than the hunter!