The Supreme Court failed again: a late and arbitrary sentence of the Court that unleashes a tremendous conflict of powers

The judgment of the Supreme Court of Justice (CSJ) in the precautionary measure initiated by the Autonomous City of Buenos Aires (CABA) against the National State causes an unprecedented institutional crisis since the democratic recovery. So far there is broad agreement that falls apart when responsibilities or blame have to be shared. This chronicler, who is a lawyer, understands that the Court has caused an unnecessary, tremendous conflict of powers. The ruling is arbitrary because it is not a logical and reasonable derivation of the current law. Several factors come together that we describe in the following paragraphs.

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Superfluous and late precautionary measure: The CABA demands that an amount granted by former President Mauricio Macri to his ally the Head of the Buenos Aires government, Horacio Rodríguez Larreta, be restored. The lawsuit, launched more than two years ago, is moving with the speed of a turtle with arthritic legs. That data, central, is malpractice of the Court. Slow Justice is not justice, amen.

Precautionary measures, as a rule, are of restricted interpretation. They are granted by exception, in case of doubt it is appropriate to reject them. They aim to prevent the substantive right from being violated by the defendant's maneuvers. Put generally, not exhaustively, there are two obvious mechanisms for doing this. The first, stealing the body to dribble corporal punishment or not to be notified. The second, become insolvent in some way to avoid paying pecuniary sentences. The National State is incapable of fleeing as Pepín Rodríguez Simón did. Your solvency is presumed. Sooner or later honor the convictions.

Without credibility or danger in the delay, it is foolish to establish a precautionary measure.

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Capricious haggling: Gustavo Arballo">The best material published on the ruling is a thread of tweets by the Pampas jurist Gustavo Arballo. The author combines good legal training, experience in courts (he has street), common sense. He writes that "there is a Lots of money at stake between the two rival estimates of fair compensation for the transferred competition. Nation says: legal version, 2.32 percent. CABA claims: 3.5 percent."

The supreme close one eye, "split the difference" as if it were haggling in a store. Arballo exposes them: “In a dispute between partners it can work, but an interjurisdictional mega-millionaire trial cannot be resolved like this, in a telegrammatic and dogmatic paragraph. The Court simply has to explain, so that we can understand and refute it, why 2.95, in a trial in which one hundredth of a percentage is a million.”

A pseudo telegraphic and dogmatic foundation configures the second arbitrariness. In plain language: the Court nails a number “perche mi piace”.

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Rejection of the provinces, without foundation: Fourteen provinces represented by their governors went to court and asked to be part because the result affected them. As "Amicus Curiae", an intermediate role that enables them to participate in the procedures, request hearings or suggest evidence, be notified of the vicissitudes. They submitted briefs twice: six months ago and a week ago. The Court did not provide the briefs. The tacit rejection, third arbitrariness.  State acts have to be founded, the highest court exempts itself from the republican duty.

To refute the public criticism of the governors, the CSJ argued that the sentence does not damage the provinces because the payment that it imposes on the Nation will not arise from federal co-participation funds. There would then be no harm to the provinces. The money in dispute could never touch them. A flagrant lie or a demonstration of supine ignorance.

The federal co-participation sets by law the percentages that correspond to each province of national taxes that are transferred automatically. But the Nation transfers other resources to the provinces. Discretionary, resolved one by one, not pre-established. Destined to carry out public works, build homes, fund social programs. They are discerned by project or by program. They accumulate “other” billions per year. The provinces need them like water. The co-participation explains (nothing less but nothing more) a fraction of the national contribution to their local economies. It is stupefying that the Court macanee on the matter. Silver is “finite” (it runs out) and fungible (all weights are the same). If the Nation is deprived of a silver cake, the provinces will suffer immediately. The State does not have surplus money, he does not waste it on fasos or timba. The surplus of it is reinvested. Obviously for anyone who does not have a crown and gown. An additional aberration that stains the tiger.

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veiled traps The Court hibernates the main trial, due to ill will or laziness, mother of all vices. Both dysfunctions can come together. With any cause, the damage is complete. The exceptional precautionary measure, conceived for the short term, tends to last forever. If that is not partiality, where is the partiality?

The courtiers ignore “manual” data, from “ball one” about the national funds that go to the provinces. It is sensible to think that the rules imposed on the Nation to pay the sentence are capricious.

Alberto Fernández instructed the State's lawyers to file two appeals in the file. The most serious, challenge judges involved in partiality and authors of an arbitrary sentence. Whoever speaks to them understands that the potential recusal is sensible, of course it will be necessary to see its text. As a floor, it is a part right.

The other resource is called "replacement" or "revocation" in forensic dialect. It consists of asking a court to retract a recent decision. It almost never operates, except in case of material and numerical errors. The magistrates are asked to reconsider and back down. The courtiers will have to solve it, arrogance, lack of self-criticism, statistical tendency, help to imagine the most feasible outcome but the right exists. Appealing a sentence could delay the process but it is not contempt.

The governors, furious against the Court, spur the impeachment of its members.

The leaders of Together for Change sing "I want a retruco" without incident: they plan a new impeachment trial against the President.

Criminal complaints against Executive officials or magistrates could add litigation and discredit against the democratic system. A raffle could drop complaints in the court of Julián Ercolini, the chatter from Lago Escondido. Wow.

Neither the ruling party nor the opposition have the two-thirds of the Chamber of Deputies necessary for a political trial to progress.

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The context also exists: Let's broaden the focus a bit. clarifies. Less than three months ago, she made an attempt on the life of Vice President Cristina Fernández de Kirchner. The Court did not make a move, it did not issue a pronouncement. Federal judge Eugenia Capuchetti blocks the investigation, the Court does nothing.

A few days ago the Supreme Court dusted off another old file: a process against Milagro Sala. They rejected an appeal almost without foundation, it is customary. The will to align with the right is symptomatic.

Business corporations, including multinationals, lobby in favor of the Court and its ally Rodríguez Larreta (see note by  María Cafferata). Denouncing it is customary, not conspiracy theory.

The Government stood up, surely late... forced by the umpteenth provocation and the severe reproaches of the governors.

These stories will continue with an uncertain and worrying outcome.

mwainfeld@pagina12.com.ar

To refute the public criticism of the governors, the CSJ argued that the sentence does not damage the provinces because the payment that it imposes on the Nation will not arise from federal co-participation funds.