Kinshasa, November 8th, 2021 (CPA) – The President of the Republic, Felix Tshisekedi, testified on Monday, in the congress hall of the People’s Palace, in Lingwala municipality, of the great interest he has in the proper functioning of the Congolese judiciary, through its assistance to the solemn and public hearing of the judicial re-entry of the Council of State, chaired by its first president, Prof. Felix Vunduawe Te Pemako.
The first president of the Council of State who placed his speech under the theme « The administrative summary, a legal instrument for the legal security of the citizen under the rule of law », began by providing the context in which the Council State was born.
“Following the break-up of the Supreme Court of Justice 50 years later, DRC ended up having a new Supreme Court of Justice in administrative matters to judge opposing disputes on the one hand, the citizen with the administration and on the other hand, public administrations among themselves; of course alongside the Court of Cassation which is another supreme court of justice in judicial matters, that is to say for interesting disputes the relations between citizens in relation to their statutes, their heritage and public order . These two courts operate alongside the constitutional court ”, informed the first president.
Today, he said, only the State Council is effectively installed and has been operating since 2018 and, pending the effective installation of other ordinary administrative courts, the Courts of Appeal exercise the powers devolved to the courts administrative appeals and administrative tribunals.
The Head of State greeting the First President and the Prosecutor at the Council of State
Returning to the theme of the day, the first president justified his choice insofar as the need to satisfy the general interest characterizes the goal pursued by the public administration in carrying out its missions.
“This necessity has earned the public administration privileges, namely: the prior privilege, the possibility for the administration to make its own decisions enforceable without having recourse to the judge, the ex officio execution privilege, possibility for the administration to obtain the execution of its decisions notwithstanding any appeal; and if necessary the privilege of forced execution, a possibility recognized for the administration to have recourse to public power », he continued.
He stressed that the summary proceedings therefore result not only from the protection of fundamental rights and freedoms, but also from the proper administration of justice.
« Indeed, acts, decisions or administrative regulations always retain their enforceable character from their entry into force, that is to say from their signature. However, they only apply immediately from their enforceability, when their publicity is acquired, either by publication or by notification ”, he said, adding that the summary procedure thus concretizes, in reality, the will of the grantor that « no one is bound to carry out a manifestly illegal order ».
The summary is ultimately a legitimate means to oppose any illegal order
The first president has, moreover, shown that the summary is ultimately a legitimate means to oppose to any illegal order, for a civilized society. It is a new subject in Congolese law, it must be admitted, that most of our lawyers do not yet master.
Because, it is only now, he specified, that the organic legislator of October 15th, 2016 introduced an administrative summary procedure, in case of emergency, among the twelve new options retained, during the great reform of the Congolese administrative litigation.
Finally, he underlined that this judicial reform of 2016 finally placed the emphasis above all on the specialization of the function of the judge, leading to that of lawyers, near the administrative courts, from the institution by the Constitution of February 18th, 2006, of the Council of State, administrative courts of appeal and administrative tribunals.
« It should be remembered that the summary proceedings in the event emergency is therefore organized only at the level of these ordinary administrative courts », he concluded.
Analysis of the same theme by the Prosecutor at the Council of State
Addressing the same theme as the first president, the Prosecutor at the Council of State, Octave Ntela, subdivided it into three points.
In the first, he presented the general concepts by addressing, on the one hand, the definitions of summary proceedings and their respective classification: civil summary and criminal summary, and on the other hand, the administrative summary by outlining a definition and indicating the purpose summary as well as the historical development of said summary in French and Belgian law.
In the second point, the Prosecutor presented the three types of administrative summary, namely general summary, special summary and special summary. From their analysis, it emerges that general summary proceedings are subdivided into suspension, liberty and interim proceedings, but the reality of the courtroom attests that requests for suspension and liberty summary proceedings are the most diligent before the Council of State.
For him, it should be noted that it is entirely appropriate that an emergency procedure such as that of summary proceedings could provide for remedies liable to affect the principle of speed. Indeed, the orders made in summary proceedings may be tainted with error or injustice, which must imperatively be corrected or repaired.
The summary proceedings, the start of a change in Congolese administrative litigation
Today and now more than ever, insisted the Prosecutor to the Council of State in his mercurial, summary proceedings are at the heart of Congolese administrative litigation. The winds of change are blowing. The revolution in the administrative justice sector is firmly underway.
« The train of renewal has already left the station to conquer new horizons and new spaces, to tackle new challenges, some always more exciting and decisive than others (…). The summary procedure remains a major advance in the protection of citizens facing the all-powerful Administration”, he continued.
Prosecutor Octave Ntela dealt with the third point, the judge’s decisions and their execution, indicating in this regard that the decisions in this matter are orders issued as quickly as possible and that they do not prejudge the merits.
As for their execution, he focused on the related procedure and on the illustration of the few cases of execution as well as the difficulties encountered.
Previously, the national president, Gerard Balanda Mik’uin Leliel, had approached a topic centered on “The expressions relating to the ministries of the lawyers before the council of state and the court of cassation, the problematic of the execution of the decisions and the acts of justice ”.
This judicial reopening of the Council of State comes after those of the Constitutional Court and the Court of Cassation, it is recalled.
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