In a unanimous ruling, the Supreme Court on Thursday declared that the the 2006 reform of the Council of Magistrates, via a bill drafted by then-senator Cristina Fernández de Kirchner, was unconstitutional.
The ruling, nevertheless, upheld everything done by the 13 members of the Council since then while ordering the body to be returned to its original membership of 20, as well as restoring the Supreme Court chief justice (Horacio Rosatti since October 1) at the helm. The future quorum will be 12 of the 20 members.
Setting the clock running, the justices said the Council, which is in charge of appointing and removing judges, would now have 120 days to appoint the seven representatives needed to bring it up to strength, as determined by the Supreme Court ruling.
If the Council cannot meet this deadline to complete the required number of 20, all its decisions will be considered null and void, ruled the justices.
Regarding the actions of the Council during the last 15 years with numbers now declared unconstitutional, the Supreme Court decided that “for inescapable reasons of legal security, the validity of the actions undertaken by the Council of Magistrates, with reference to the system examined in this ruling, is herewith declared.”
Altered the balance
The Supreme Court considered that the 2006 reform, introduced by then-president Néstor Kirchner, had altered the balance in the representation of the different sectors forming the Council: politicians (senators and deputies), lawyers, judges and academics.
The 55-page resolution from the judges recalls that Article 114 of the National Constitution establishes that the Council “will be integrated in a fashion procuring equilibrium between the representation of the political organs resulting from popular election, the judges of every instance and lawyers registered within the federal system.”
The tribunal said that “impugning the constitutional status [of the reform] is grounded in the absence of balance in the representation of the above estates,” highlighting that what the law seeks is “the impossibility of any one of the four aforementioned estates asserting a hegemony or control of the Council by themselves and without need for consensus with the other estates.”
“It is evident that the political estate has sufficient numbers to achieve by themselves a hegemony or predominance over the other three technical estates in clear transgression of the equilibrium required by the National Constitution” ran the opinion of the justices.
“The political estate has a total of seven representatives — six legislators and one representative of the Executive Branch — a number granting quorum and an absolute majority of the body, which permits them to convoke it by themselves and without the attendance of any representative of any other estate, all powers of the Council for which no two-thirds majority was fixed,” underlined the ruling.
That prevalence of the political wing (in which both the government and the opposition are represented), according to the Supreme Court, “frustrates the aims of partially depoliticising the processes of appointing and removing magistrates, thus increasing judicial independence.”
On that point in particular, the ruling disposes the immediate application of the norm establishing that “to approve and raise [for consideration] lists of candidates, the required majority is two-thirds of the members present.”
A two-thirds majority of a plenary session is currently required to approve a list but within the Selection Committee a simple majority is enough.
Formation and functioning
The Court justices asked Congress to pass a law establishing the future formation and functioning of the Council while respecting the guideline of equilibrium which it considered altered by the reform in force until now.
The constitutional status of the reform had been challenged by the City of Buenos Aires Bar Association, representing the most conservative wing of lawyers.
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Some weeks ago the government had sent a reform bill to Congress establishing the number of councillors at 17 and excluding the Supreme Court chief justice from its helm.
A similar bill initiated by the Colegio Público de Abogados de la Capital Federal during the previous government had gained consensus between Juntos por el Cambio and Kirchnerism but when it seemed about to be passed, the then government put a stop to it.
The ruling was signed by the justices Horacio Rosatti, Carlos Rosenkrantz, Juan Carlos Maqueda and Ricardo Lorenzetti, the latter with a partial dissent which does not alter the unanimity of the decision.