The judge Eunisis Vasquez Acostaof the Constitutional Court (TC)warned that his companions had to declare inadmissible the direct action of unconstitutionality filed against several articles of the laws of the Armed forces and the Policewhich prohibit sexual relations in those institutions among people of a same sex.
The considerations of Vasquez Acosta are found in a dissenting vote issued in the sentence in which his companions declared unconstitutional the articles that establish objections to the sexual relations of homosexuals and lesbians in these institutions.
Judge Vásquez Acosta understands that the unconstitutionality action filed against said articles should have been declared inadmissibleby lack of objectas these are regulatory provisions that were repealed by the legislator through the Law 278-04and which, therefore, lack legal operation.
The articles declared unconstitutional are the 210 of Law 285 of June 29, 1966 and 260 of Law 3483 of February 13, 1953, which prohibit sexual relations between people of the same sex in the Police and the Armed Forces.
Judge Vásquez Acosta warns that constitutionality control should not be applied to norms without regulatory validity
“By virtue of the above, this judge respectfully dissents from the decision adopted by the majority of the Plenary and considers that the direct action of unconstitutionality filed against article 210 of Law 285 of June 29, 1966 and article 260 of Law 3483 of February 13, 1953 should have been declared inadmissible for lack of purposeas these are regulatory provisions that have been repealed by the legislator through Law 278-04, and that, therefore, lack legal operation”Vásquez Acosta expressed in his dissenting vote.
He said that, “although the Plenary has decided to rule on the unconstitutionality of norms that, in the opinion of this judge, have already been repealed, it is necessary to remember that the concentrated constitutional control should not be exercised on provisions that have lost regulatory validity”.
He explained that this is because the article 6 of the Constitution establishes that “any rule, act, decision or measure contrary to this Constitution is null and void,” but said nullity presupposes the existence of a current norm that produces legal effects.
He maintained that, as such, the analysis of the direct action that concerns us is based on a legally incorrect premise, such as the alleged validity of the articles 210 and 260 of the police and military justice codesrespectively, that criminally sanction the conduct called “sodomy”.
“In the opinion of this judge, these provisions lack legal effectivenesssince they have been repealed by the criminal procedural model established in the Dominican Republic through the Law 278-04on the Implementation of the Criminal Process instituted by the Law 76-02who created the Criminal Procedure Code Dominican”.
