In 2012, the IMF published the “Global Financial Stability Report (GFSR)”, and in chapter 4, it warned about the financial impact of longevity risk. The IMF stated in the document: “The financial implications of people living longer than expected (so-called longevity risk) are very large”. The institution coldly pointed out that delaying the retirement age allowed the period of accumulation of pension resources to be prolonged and then, with late retirement, the period of use of these resources is shortened, given the natural time of human existence.

By Miguel Julio Rodríguez Villafañe

However, the report did not analyse the negative implications for individuals and peoples of demanding the payment of illegitimate, odious, illegitimate and usurious eternal foreign debts imposed by the world’s financial power. And by no means did the IMF say anything about the fact that, in 2017, the government of Mauricio Macri contracted a 100-year debt, with an interest rate of 8.25 per cent per annum, which was one of the most profitable financial operations for the big international investment funds, which conditioned the future of more than six generations of Argentinians.

However, it is always made to appear that the culprits of the budget imbalances are the so-called “passive class”. And they are presented as a charge on society, particularly if they live too long. All this without any critical, legal or moral judgement on the subject.

At the same time, the media’s handling of the issue does not touch on the foreign debt payments at all, but rather sugarcoats them, without forcing a freeze on payments and an audit to determine whether they are legally due for payment.

But the seriousness also lies, among other great internal discriminations against retirees and pensioners, and nobody refers to it, with respect to the debts owed to them, which are undisputed and legitimate. It is worth mentioning that the current Law 24.463 of the Social Security Judicial Procedure, of 1995, unjustly determines, in article 21, that, in the case of social security lawsuits, “in all cases the costs will be in their order”. In other words, even though retirees and pensioners have won a lawsuit against the National Social Security Administration (ANSeS), they still have to pay their costs and lawyers’ fees.

The aforementioned goes against the provisions of the National Constitution (arts. 14 bis, 16, 17, 18 and 28) and the “Inter-American Convention on the Protection of the Human Rights of Older Persons”, signed by Argentina and ratified by Law 27.360 of 2017. The Convention provides, among other statements on the subject, that States Parties “shall adopt and strengthen all legislative, administrative, judicial, budgetary and any other measures, including adequate access to justice in order to guarantee the elderly a differentiated and preferential treatment in all areas”, (art. 4, para. “c”).

Article 21 of Law 24.463, which has been in force for more than 26 years, has still not been repealed and the National State has ratified it and has made and continues to make abusive use of it. This is because, as it does not have to pay the costs, it interposes all possible appeals to all court instances, in order to delay any judicial resolution, even when there is peaceful jurisprudence, contrary to the position taken by the ANSeS on the issue in question.

At the same time, the undue and cruel delay, to which the National State subjects the plaintiffs in order to have their rights recognised, in matters of food and vital content, not only damages their patrimony, but also attacks one of the scarce assets of the elderly, such as their time. Late recognition of their rights often prevents them from enjoying what is rightfully theirs.

Furthermore, the rule goes against the general principle of legal costs, which is determined by article 68 of the Code of Civil and Commercial Procedure of the Nation -Law 17.454-, which states: “the losing party in the trial must pay all the costs of the opposing party, even if the latter has not requested it”, with the judge only being able, exceptionally, to totally or partially exempt the losing litigant from this responsibility.

In December 2017, the new National Law 27.423 on Lawyers’ Fees in the federal justice system made progress on the issue and the National Congress determined, in art. 36, that “in social security cases… Costs shall be imposed in accordance with the provisions of the Civil and Commercial Procedure Code of the Nation”, that is, in accordance with the aforementioned art. 68. Immediately afterwards, President Mauricio Macri issued the Decree of Necessity and Urgency 157, in February 2018, by which he repealed article 36. The government understood, evidently, that the payment of fees that should be paid to the State responsible for the delay, was against the economic objectives set by the IMF.

The issue is unacceptable, let us note that pension victims must always pay lawyers’ fees when they have to sue the defaulting State, while the Vulture Funds, in the settlement carried out by Mauricio Macri in April 2016, were paid their lawyers’ fees, even in cases that they lost, such as the seizure of the Libertad frigate in Ghana, in which Argentina won the court case.

In 2019, I proposed to the Specialised Commission of Human Rights of the Elderly of the Bar Association of Cordoba to make a big move, to repeal as soon as possible, the unjust and undue art. 21 of Law 24.463, for being unconstitutional and seriously affecting the rights of retirees and pensioners and to reinstate article 36 of National Law 27.423, which was repealed by DNU. Unfortunately, although the Commission endorsed the proposal, the Pension Law Chamber of the College and the College itself, even today, more than two years later, have not made any progress on it. Could it be that they are arguing that it is easier for lawyers to collect their fees from the pensioners’ money, when they are paid what is owed to them, than to execute the State that lost the trial?

We are all responsible for the tremendous injustice to our elders. We cannot look the other way on this issue.

(*) Constitutional lawyer and journalist and opinion columnist.