The highest court as a “counter-majoritarian” power that has not been elected by the people should not condition what “constitutionally the democratic powers” -legislative and executive- decide, says the author of this article. He points out that both the president and vice-president of the Court travel around the country proselytising for the judiciary instead of resolving the cases that are within their competence. And as if this were not enough, they send Congress an obscene budget equivalent to 10 billion pesos per year and per minister for their functioning.

By Miguel Julio Rodríguez Villafañe

We are living through a serious rupture in the dynamics of the country’s basic institutional architecture.

The Legislative and Executive branches are neutralised in the fulfilment of essential tasks for the constitutional functioning and political parties without identity, diluted in coalitions that condition any agreement with a clear direction in State policies, for the common good. The appointment of the Ombudsman of the Nation 13 years ago; the appointment of the Attorney General of the Nation 5 years ago; the appointment of a female replacement for the vacancy in the Supreme Court of Justice of the Nation almost a year ago; the replacement of judges put on commission, unduly, on a “provisional” basis (Bruglia and Bertuzzi), during the administration of Mauricio Macri; the need to reform the dynamics of the Supreme Court of Justice of the Nation (CSJN) and the fact that there are 25 percent of vacant positions in the national and federal justice system that have not been filled; among other urgent aspects to be addressed, comprehensively, by all those responsible.

In this context, the highest court in the country has been irregularly co-opted by Horacio Rosatti, current president of the Court and simultaneously president of the Council of the Judiciary of the Nation, which exercises the judicial public power. In addition, together with the vice-president, Carlos Rosenkrantz, they both elected themselves to these positions for three years, from October 2021 to October 2024. An irregular elective meeting in which they voted for themselves with the collaboration of the other member Juan Carlos Maqueda. The other two members, Ricardo Lorenzetti and Minister Elena Highton de Nolasco, who resigned in November 2021, were not expected to attend the meeting, as they should have been.

At the same time, both the president and the vice-president of the Court have recently been travelling around the country, for it to make judicial proselytism among judges and make clear their arrogant power over the other branches of government. These attitudes of the judiciary have no constitutional justification whatsoever.

Thus, recently, at the closing of the XXII Meeting of Judges of Federal and National Oral Courts of Argentina, held in the city of Catamarca, on 29 and 30 September 2022, Horacio Rosatti said: “I believe that the profound judicial reform, involving substantive and procedural aspects, will be the one that has the consensus of the Judiciary, because we have a lot to say. That is what we want from the CSJN”. But afterwards, he conditioned his acceptance of the changes and said: “As far as we are able, we will carry out the necessary reforms”.

In other words, the CSJN has unconstitutionally limited the other two democratic powers. It is one thing to consult the Court and quite another for the Court to threaten that, as a counter-majoritarian power not elected by the people, it can condition what the democratic powers (the Congress and the Executive) can constitutionally decide, and to add that they will carry out the regulations that are dictated, to the extent of their possibilities and as long as they consider them necessary.

Rosatti’s statements imply a real attack on the constitutional order, with the aggravating factor that he did so by making the rest of the heads of the country’s various courts, gathered at the meeting in Catamarca, into unwitting accomplices.

This is aggravated by the fact that the declaration was made after the vast majority of Argentina’s governors had agreed on a project to reform the CSJN, which recently received the approval of the Senate.

On the other hand, it has become clear, as has emerged in the discussions in the Senate Committee that dealt with the bill, that the vast majority of the rulings cannot be seen and analysed by the ministers since, on average, they sign between 71 and 80 rulings a day because, as former member of the court Eugenio Zaffaroni stated in the Committee on 5 May 2022, they remove it between 15,000 and 17,000 rulings a year. All of which means that the court’s rulings are, in fact, a big stage set and not the result of judges personally dealing with each case or deciding on issues they do not specialise in.

Furthermore, the CSJN, in monarchical fashion, functions without time to resolve its cases and often with late decisions without grounds, in accordance with the unconstitutional article 280 of the Procedural Code of the Nation, which allows it to decide, without giving reasons, only by mentioning the article of the Code.

The latter is negatively enhanced when it is noted that, in the midst of adjustments in which many sectors are seriously suffering, the CSJN has sent its budget for the year 2023, published in the Official Gazette of the Nation on 15 September 2022. The Ministry of Economy has added it verbatim.

In it, it appears that the members of the Court fixed “the Budget of Expenses of the CSJN for the year 2023 -approved by Acordada 21/22-, in the amount of pesos Fifty-four thousand six hundred and seventy-two million one hundred and forty-four thousand four hundred and forty-nine pesos ($ 54,672,144,449). This amount, $ 47,905,179,309 pesos, is allocated to the payment of court personnel, that is, 87.6% of the total expenditure on salaries for 4,732 positions. Can it be that the Court alone has an average annual expenditure of $ 10,123,664 pesos for each person under its jurisdiction (from magistrates, officials to employees) or, in other words, that to maintain the CSJN, the sum of ten billion pesos per year must be allocated in employee expenses, in proportion, for each of the five members that comprise it, the sum of ten billion pesos per year?

The CSJN urges the other branches of government to consult it on any reforms so that, if it agrees, it can guarantee that it will enforce them, but at the same time it demands that they be granted, without consulting the other branches, the amounts referred to and does not demonstrate any guidelines for austerity in spending, which is necessary in the economic crisis we are experiencing. Meanwhile, according to the budget presented by the Executive Branch, the amount requested by the Court for the payment of salaries of its staff is equal to the amount of fifty billion pesos, which is cut from the Plan Conectar Igualdad of the Ministry of Education.

The Judiciary loses the necessary constitutional and moral authority when it assumes itself as a superpower, above the other democratic powers and above the needs of the country as a whole.

Constitutional lawyer from Córdoba and journalist and opinion columnist.