1/25/2023 - Politics and Society

Living in the exception is living in the limit: nine initiatives that demand to be resolved

By Valentín Olavarría

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Imagen de portada

When the exception becomes a rule, we find ourselves with a problem. The year begins and political news is not missing. The Executive returned to convene extraordinary sessions this week, as it is customary for years in the country (since 2009, only on an occasion did not session extraordinarily), to debate 27 initiatives. Thus, there are 88 projects that are sent in the extraordinary since the beginning of Alberto Fernández's mandate, approving only 10. However, the sessions are not the only exception that was made a rule. We then appoint nine other initiatives or accusations that claim to be valued:

  1. Ombudsman of the Nation

It has been 14 years since the last Ombudsman has resigned. According to the National Constitution (CN), two-thirds of the present of both chambers are required to fill the vacancy. According to Article 86 CN: “your mission is the defense and protection of human rights and other rights”. For a country that ruled in 2022 of the Presidency of the UN DDHH Council (CDH), it is a worrying situation. The same opined The Human Rights Watch in its 2023 report, as well as the Organization of Latin American States (OAS) in 2014 and the CSJN, which urged Congress to choose a defender in 2016. More than a decade has passed without the Argentine society having a leading advocate, who has multiple judicial assignments to face unfair policies. In addition, continuing with the UN, it is the only national DDHH institution recognized by the United Nations and, for some analysts, it may risk losing its status in the body.

Roberto Gargarella, constitutionalist lawyer, told us about the political implications of the lack of Ombudsman: “This is evidence that suggests that the current leadership, together and in a cross-sectional way, is not interested in institutional matters; and that, in particular, it is dismayed at the presence of institutions aimed at controlling and inspecting their own work.”

  1. General Nation Research

Five years and a few days ago, Eduardo Casal took over as Attorney General of the Provisional Nation, after the resignation of Gils Carbó. However, no law has yet been passed to cover the missing vacant half a decade ago. The constitutional position legislatively needs two-thirds of the members present to be confirmed. The current executive expressed his intention that Daniel Rafecas be the next prosecutor. Congress hasn't accepted it yet. In addition, in the journal published on the extraordinary, point seven is this. In turn, in 2020, the Senate approved a project that sought to reduce the majority needed to designate this position, but deputies did not just approve the norm. The prosecutor is the head of the Fiscal Prosecutor, and the in charge of designing his policy, which, according to article 120 CN, is based on: “promoting the performance of justice in defense of the legality of the general interests of society”. It doesn't seem to be anything less than the lack of prosecutor for five consecutive years. .

  1. Member of the Supreme Court of the nation (CSJN)

A year and two months ago, a vacancy remains at the CSJN table after the resignation of Elena Highton of Nolasco, after retiring. This situation does not change the everyday ado of the Court, but rather gives, first of all, greater individual power to each of its members, lower legitimacy and power, and the risk of acephaly. Lastly, we know that at the end of 2024 Judge Juan Carlos Maqueda is 75 years old, so he should retire, and so CSJN would have three members, a situation that would leave her immobilized. This is also a problem that will have the next government. To choose the missing person, two-thirds of the Senate are required. To illustrate the severity of the situation, the president is also decommissioning a 2003 decree (which has its signature), which grants him to the Executive thirty days to send the notebook to the Senate of a name to cover this vacancy.

Dr. Alejandro Chehtman, Dean of the School of Law at Torcuato Di Tella University (UTDT), cooperated with us to clarify the theme. With the vacancy, the CSJN “can work almost normal” although, in turn, “not being able to find consensus figures to appoint a judge of the Court is a very worrying symptom of institutional solidity and our democracy and, of the lack of concern of leadership for institutionality”.

  1. Federal Judges

According to Human Rights Watch, in September 2022 there were 257 vacancies in federal and national justice. Moreover, since 2021 there are no hearings in the Senate for the appointment of magistrates, that is, more than a year ago no judges are appointed. Therefore, in 2015 CSJN established that the delay “atenta against judicial independence”. He also made his president last year: "We also called the coverage of federal vacancies". It is no longer just a matter of institutional weakening, but also a clear lack of justice and security for citizens.

  1. Federal Tax Coparticipation Law

The transitional provision Friday of the CN is clear: “A co-participation regime (...) will be established before the end of the year 1996”. Argentine society is waiting after two and a half decades its resolution. Although it is not easy to pass (it is a law agreement), the lack of sanction repercussions on the day by day of the Argentines, since the fiscal percentages are anachronistic (siglo XX). This has not only economic but also political-social effects: current conflicts with CABA and CSJN come from there. Lawyer Garret Edwards, director of Legal Research at the Freedom Foundation, watched us reflect on these topics and said that the issue of co-participation “is a problem that Argentina has in a historical way” and that, on the possibility of outcome in the short term: “if we cannot solve the problem of inflation, we will also not resolve the issue on federal coparticipation. There is a lack of political decision”.

  1. Distribution of bankrolls in the Chamber of Deputies of the Nation

The current distribution by provinces of the 257 deputies contains errors. As several writers mentioned, there is a sub and overrepresented of some provinces in the Lower Chamber. In other words, there are some that in a proportional way have more and more with fewer deputies than the national law and constitution. Two clear examples are Buenos Aires, which has a deputy for every 223,215 inhabitants, and Terra do Fogo, with one every 25,441 (following the 2010 census). In this way, there is still no solution to the problem of legislators, who continue in an exception while some provinces benefit and others are harmed. Thus explained the polytologist Andrés Malamud: “The current distribution of banking in the Chamber of Deputies is unconstitutional because it is based on the 1980 census, when, according to Article 45 of the Constitution, it should have been readjusted three times (after the 1991 and 2010 censuses). However, 32 years ago, this situation “because the beneficiary provinces (in bankrupts and in co-participation) have blocking power at the congress. The solution can only be induced by the Supreme Court or by a political crisis that threatens to bring the governors and not only the president ", closed the researcher at the University of Lisbon.

  1. National Judgments in CABA

Still in the country, after the 1994 national constitution and that of the 1996 CABA, there are still national courts (distinct to the Federals). These were those who were in the territories federalized by the national government (as was the case of Terra do Fogo and the City of Buenos Aires Prefecture). However, in the Autonomous City of Buenos Aires, these courts continue to exist that according to the aforementioned constitutions should have been made a transfer to local courts. It's been like this for 27 years and it seems to keep up.

  1. Council of the Magistrature

After a decision of unconstitutionality of 2021, the Council of the Magisterium had to modify its structure. The law until then was 26,080, 2006. Thus, the decision of CSJN left unused a law after 17 years of application, returning to the previous law. A law of the Council of the Magistrature has not yet been passed since. All this knowing that it is in charge of selecting and sanctioning the judges, among other functions, illustrating the essentials of a law of these characteristics.

  1. President of the Central Bank of the Republic of Argentina (BCRA)

After the election of Frederico Sturzenegger to the post of President of the BCRA in 2015, no other was designated, as established by the Organic Letter of the BCRA (which must be rejected by the Senate). This is how Miguel Pesce, current president, is a “in commission” by not having approved his notebooks, such as establishing the bank’s web page. Thus, for eight years BCRA's president has not been legally designated, which generates less legitimacy and international prestige.

In conclusion, we see that the Argentine State is highly demanding to preserve its institutions. Perhaps the cause we can find is what we have seen in the world and in Argentina for several decades: polarization. All these laws and positions need special congressional majority to be approved, a question that results from impossible resolution in a polarized and cracked scenario. Similarly, the consultant Edelman expressed his annual report a few days ago: society is perceived as the most polarized of the 28 analyzed.

This situation produces several effects ranging from harm to the rule of law to lower amount of institutional tools to favor society. Although it does not end there: current occupants of positions have little legitimacy to act and decide on crucial issues for social life. Or even on the economic side, by not guaranteeing stability and legal certainty, it decreases investment as well as international prestige. These short or medium-term situations need to be resolved, but if, in the future, the causes of the background are not resolved, there are certainly more exceptions converted into rules.

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valentin olavarria

Valentín Olavarría

Hi, I'm Valentín Olavarría. I have a degree in Political Science (UCA). Founder of the blog La Argentina Joven. va.olavarria@gmail.com

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