9/12/2022 - Politics and Society

The City of Buenos Aires autonomy: From constitutional mandate to 28 years of political decline

By Enrique Tourvel Munilla

The City of Buenos Aires autonomy: From constitutional mandate to 28 years of political decline

With the return of democracy, the political initiative aimed at reforming the existing National Constitution began in Argentina. In this sense, after repeated attempts of democratic destabilization during the government of Raúl Ricardo Alfonsín (1983-1989), the Justice Party, led by then-President Carlos Saul Menem (1989-1999) and the Radical Civic Union, in the head of the already mentioned Alfonsín, concluded the Pact of Oliveiras and proceeded to the most important constitutional reform of national history since 1949 (peronist reform of the school of the constitutional school).

This reform brought many changes: the constitutionalization of consumer defense (Art. 43), the incorporation of international human rights treaties with constitutional hierarchy (Art. 75 inc. 22), the reduction of presidential mandates to 4 years with the possibility of re-election (Art. 90), the incorporation of the Head of Cabinet of Ministers (Art. 100), among others.

However, this considerable reform of the Argentine political system also brought the bestowal to the City of Buenos Aires, then the so-called "Federal Capital", the character of Ciudad Autónoma. By writing the article.129, it is delivered to the City of Buenos Aires - by the Federal Government - of the powers of jurisdiction, legislation and the possibility of its inhabitants to choose their representatives, both for the National Congress and for the Executive Branch of the City itself.

It should be noted that, following that our original Constitution was dictated with the agreement of the United Provinces of the Río de la Plata (official name valid to refer to our nation according to Art. 35 of the National Constitution), all provinces retain the powers not delegated to the Federal Government through the Magna Charter. That is, what is not expressly delegated by the provinces to the National State, remains under the power of local governments.

This situation differs from that established for the City of Buenos Aires. Although it is granted autonomy, it is also guaranteed to the National State the use of it in both federal capital and, because it is the National State who gives it to the City of the territory and not vice versa, the Autonomous City of Buenos Aires only possesses the powers expressly delegated in the Magna Charter, unlike the rest of the provinces.

This political copper generated certain conflicts in the matter of the transmission of powers from the National Executive Power to the Autonomous City of Buenos Aires.

The first basic conflict that, after 28 years has not been resolved, is the dictation of the procedural codes of common law (laboral, commercial, civil, ordinary penalty) by the legislature of the City of Buenos Aires. This has to do with a central problem that is the non-transfer of local jurisdictions that judge on common law since the Supreme Court of Justice of the Nation to the Superior Court of Justice of the City of Buenos Aires, the so-called "National Forces".

What is the political transfer of this transfer?

Although in political matters, the causes of these esros do not usually have greater public relevance, with certain exceptions (the bankruptcy of the Argentine Mail, for example), the reality is that the transfer is not suitable for the Government of the Autonomous City of Buenos Aires every time it would have to start financing the judicial functioning of more than 250 courts and dozens of Chambers of Appeals rooms so much, so it is not for the national government to transfer to fire

In addition, national judges and fiscals see with bad eyes being "degraded" to local judges and fiscals of the Autonomous City of Buenos Aires.

Lastly, and not least, the General Inspection of Justice that registers legal persons with social domicile in the City, remains in the hands of the Ministry of Justice of the Nation. That is, the entity that registers 90% of the companies constituted as companies in Argentina, remains in the hands of the National Turn Government, dictating the regulatory provisions that would correspond to the legislature and executive power of the City of Buenos Aires.

Now, the only hostages of this dispute between the Nation and the City - which is without importing the turn political color - are the provinces that continue to solvent a local Ordinary Judiciary, whose transfer was ordered by constitutional mandate 28 years ago and whose cases are of exclusive jurisdiction to the territory of the City of Buenos Aires.

In a ruling issued by the Supreme Court in 2021 on the power of the CABA not to recognize decrees on educational matters by the PEN, the Supreme Court referred to this political debt that already takes almost 3 decades, but omitted its entry into force.

He mentioned the City of Buenos Aires as a "federal constitutional city" and awarded the national judges with a seat in the Federal Capital smaller range than the federal judges. Now, many years have passed and neither the Supreme Court of the Nation, nor the Autonomous City of Buenos Aires, nor the Federal Government, each with its political reasons, take action to comply with Article 129 of the National Constitution. For it is not possible to claim, on the part of the City, complete political autonomy without wanting to assume the economic costs that implies that in matters of jurisdiction, transportation (collective theme), among others.

Costs which are being solventd through the taxes of the rest of the country. That is, part of the national taxes, collected at all points of the country are going today unconstitutionally, to the financing of ordinary justice of the Autonomous City of Buenos Aires and the subsidies in its public transport. To finance the justice of the richest city in the country.

It is time to comply with the provisions of the Magna Charter and end, once and for all, with this moral and political debt that already takes almost 30 years.

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enrique tourvel

Enrique Tourvel Munilla

Hi, I'm Enrique Tourvel, a lawyer with public law guidance. Currently I perform in the Judiciary of the Nation - Fuero Comercial. Professor of General Elements of Commercial Law and Societies at the University of Buenos Aires.
Specialized in corporate law.

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