The Government evaluates as a great provocation the announced intention of the Supreme Court to sign before the end of the year a ruling declaring the unconstitutionality of the current composition of 13 members of the Council of the Magistracy as it is considered unbalanced, and will go out to the intersection with the presentation of its own bill to modify it and raise it to 17 members.
The intention is to empty (politically) of content or to cushion the possible effects of the sentence that the supreme are in full preparation, which could annul the law sanctioned in 2006 at the impulse of Cristina Fernández de Kirchner when she was a senator and make the Council return to the original composition of 20 councilors headed by the president of the highest court, in this case Horacio Rosatti. The scheme that the Executive Branch plans to postulate expands the representation of the judicial establishment but does not include any courtiers in the presidency.
The issue of balance between the sectors that make up the Council of the Magistracy is a long-standing discussion. It is an organism that generates strong interests around it since it is the in charge of electing the tribunals of federal judges and judges that rise to the Executive Power and can promote the opening of political trials.
The first format it had, when it began operating in 1999, was 20 members. In 2006, Congress approved the modification that reduced the participation of the judicial corporation and the scheme of 13 remained, which is the current one, which was judicially challenged. In 2015, Chamber II of the Chamber on Administrative Litigation declared its unconstitutionality and the issue reached the Court. The case was promoted by the Bar Association of the City of Buenos Aires, the same one that supported coups d’état and that during the government of Mauricio Macri collaborated with the offensive against judges, judges and prosecutors who were not to the liking of the management, and even against the former attorney Alejandra Gils Carbó. The former chief of staff, Marcos Peña, asked the supreme in a 2016 hearing not to resolve anything because the Cambiemos government would propose a reform, which never materialized.
The supreme were tolerant with the Macri government but now they have changed their attitude and let their intention to resolve the file that they have kept for five years transpired.. At least three of the members of the Court – Horacio Rosatti, Juan Carlos Maqueda and Carlos Rosenkrantz – are preparing to declare unconstitutional. Ricardo Lorenzetti could be along the same lines, but would propose a different outcome: urge Congress to pass a new law. Most analyze the return to the previous law with the composition of 20 members, although it is not clear if it would be done automatically or would be applied from August or September of next year, when the regular renewal of current directors begins, which requires a whole process in each establishment. This uncertain period could generate an institutional problem. In any case, it is not ruled out that new paths will be analyzed in the coming days. The indication to deputies and senators to modify the current law, in fact, could join with the Government’s proposal and avoid a political scandal. But it does not square with the idea of some supreme that the Court once again set foot in the Council, either through the president or his vice.
* Currently the Council has seven political representatives (six legislators and one delegate from the Executive Power, that is, 53 percent), three judges (23 percent), two lawyers (15 percent) and an academic (7 percent). During the Cambiemos government, the ruling party had a constant majority that managed to manage decisions and was part of the maneuvers to colonize part of the justice system. But in that period the Court decided to leave it intact. Currently, the ruling party does not have a guaranteed majority and depends on permanent negotiations. In fact, there are eyes on the body because key appointments are pending in the Federal Chamber and in three courts of Comodoro Py, among others.
* The original 20-member council was made up of eight legislators and one representative of the Executive Power (45 percent of representation), five judges including the president of the Court as head of the Council (25 percent) , four lawyers (20 percent) and two academics (10 percent).
* The project that the Executive plans to send now is in tune with the analysis made by the Consultative Council for judicial reform that Alberto Fernández had convened. The proposal provides for 17 councilors: six legislators and one representative of the Executive Power remain (41 percent), the number of judges increases to four (23 percent), four lawyers (23 percent) and two academics remain (11 percent). It would be the model with the least political representation of all. It is endorsed by both the President, Cristina Fernández de Kirchner and the Minister of Justice, Martín Soria.
Former minister Germán Garavano had presented a similar project, with 16 members, with one less academic, but it had no parliamentary discussion. One characteristic of that idea was that it sought to relax the current two-thirds majority, required to pass shortlists and political trials, and transform it into an absolute majority. In 2013, a reform was approved that brought the Council to 19 members, as part of the process of “democratization” of justice, but the Court invalidated it and it could not be carried out. He questioned the popular choice of councilors that was being considered.
The tentative date of the supreme sentence is December 16, as confirmed to this newspaper in the court itself. A few days before, this Tuesday, December 7, a meeting of the Court with Soria is scheduled, an institutional meeting that was pending since he took office. Regarding the possible ruling, the minister said last week in Bahía Blanca: “It is not without attention that the Court is about to issue a ruling to declare unconstitutional a law passed in 2006. It took 16 years to realize it. It should make noise to all Argentine men and women. “In the Council itself, no one shows too much concern about possible changes. They are used to creating and disarming alliances, even between the political and judicial bodies, and fighting with the Court over the management budgetary.
The meeting in the court was planned since before the Executive defined the project on the Council. The idea of the government, as is evident, is to anticipate and somehow make the possible failure absurd, by showing that he was already working on a project and that in terms of balance, they understand, it would be better than the return to the model of 20 counselors. There are those who, as a maximum bet, think about the possibility that the Court will not pass the sentence in question. If there were a constructive look at the issue from the court, it could also – in case of obtaining the ruling – make an allusion to the Executive’s proposal.
The parliamentary scenario is not easy either. Until now, the projects on judicial issues of the current Government (judicial reform and the Public Ministry and the Attorney General’s Office) have not passed the Chamber of Deputies. To make matters worse this week the new deputies and senators take office. In the Senate, the ruling party will lose its own quorum. In Deputies the gap between the ruling party and the opposition is narrowing. The interesting thing, as all political sectors are concerned about obtaining a cut in the Council of the Magistracy, perhaps in this case – with optimism – political agreements will be achieved that in other areas were unthinkable.