Political judgment to the Supreme Court of Justice
On Thursday, January 26 began the debate by the political trial of the Supreme Court of Justice (CSJ) in the political trial commission chaired by the official deputy Carolina Gaillard. According to the inter-ranial lawyer: “After reviewing the complaints presented and after viewing the processes, we will listen to the authors of the projects to expose, after which the admissibility report will be treated to advance and open the test to open it.”Outside the proper analysis of the political trial process, this note seeks to inquire about the milestone that generated the tension between the judicial and executive power and the role of the congress as an arbitrator of the dispute.
Our constitution is based on its sanctioned American counterpart in 1787. The latter emerged based on a debate called “federalists vs centrists” where, among other things, the essence of republicanism is discussed. The division of powers brings with it a structure of weights and counterweights seeking that no station can stand above the remaining two (e.g. legislative or partial/total veto insistence). Montesquieu argued: “every man who has power is inclined by abusing it; he goes until he finds limits. In order not to abuse this, it is necessary to dispose things in such a way that power holds power”The opposition coalition rejects the request of the officialist block and calls it “anti-democratic”. The central argument of this article is that perhaps the statement is excessive and that, on the contrary, we are observing a tension in the balance of executive power and judicial power, which the constitution guarantees and that the same democracy – with its own instruments – must resolve.
By observing the dossiers presented in the committee and listening to the Members' wishes we could say that the President of the Nation understands that the balance was broken by three facts:
- A) The court declares unconstitutional the law of reform of the board of the magistracy (2006) and positions the President of the CSJ as chairman of the board
- B) The court gave a precautionary measure in which it established that the Nation should send to the City 2.95% of the co-participating funds. With Macri's decree of 2016, the percentage was 3.5% and Alberto Fernández's reversal had placed it at 2.32%. The argument of the former president for the increase was to consider it as part of the funding for the transfer of the police to the port area.
- C) The court rejected two complaints that had been submitted by the National State against the precautionary measure of the Federal Administrative Board which manifested the nullity of the Executive Branch decree that declared public services essential to the services of Information and Communication Technologies (ICT)
Let's go through parts:
- A) In the first instance, the court took more than 15 years to position itself on the constitutionality of a law (promoted at that time by Senator Cristina Fernández), which produces uncertainty about the times and the capacity for constitutional revision of the magistrates. However, what the Executive Branch considers most serious is that the President himself of the Court can decide on a constitutionality that benefits him directly (the position as President of the Board of Directors).
- B) The dispute for the co-participating funds of the nation has always been a controversial issue over the decades. The sanction of current law (1988) established a very difficult renegotiation mechanism to achieve (all subnational states must be in agreement). In turn, with the constitutional reform of 1994, one had to enter the city of Buenos Aires in this mechanism and re-sign funds. Outside the legal dispute, we can observe a political tension (which transcends the judicial sphere) that makes federalism a little observed compass – but mentioned – by Republican stands
- C) In a nutshell, we could say that the court sanctioned public policy. It gave rise to the corporate claim and discredited what Roussonian theory calls “general volunteer”. The argument of the President of the Nation can be summarized in the following two appeals why the regulatory power can decide on binding legislation? Shouldn't it be the Congress of the Nation that expires on decrees that affect the "essential" rights of the population?
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