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OP-ED | 08-05-2021 00:28

Courting deadlock

The whole idea of the separation of powers is to achieve a constructive division of labour, not a collision course in which the component forces cancel each out.

Last Tuesday’s Supreme Court ruling defining classroom education as City Hall’s call was doubtless an enormous relief for countless parents whose offspring were facing a winter of pedagogic house arrest after being denied almost an entire year of normal schooling. But beyond that, this jurisdictional tussle is a no-win situation which does not leave Argentina looking good in the outside world from any standpoint and nor does it help the political gridlock here. The outside world is naturally concerned for legal security when a government displays contempt of court by equating hostile rulings with “institutional coups” but nor is it institutionally healthy when an elected government is judicially denied emergency powers in the face of an evident crisis – everything appears to be politically driven instead of allowing the rule of law and a true separation of powers to prevail.

The Supreme Court’s abstract ruling in a highly abnormal context seems insufficiently mindful of the dimensions of this pandemic upsurge as winter approaches and nor is this the first time that the judicial system has failed to understand that a democratically elected national government has been given a mandate to apply policies which in no way lose their legal force should they happen to be bad – the recently quashed dollar futures case and the trial of the memorandum of understanding with Iran are two apposite examples here. Expecting any reasonable cooperation from the Islamic Republic of Iran might seem close to lunacy (less so setting over optimistically low dollar futures to keep devaluation and inflation at bay because a not improbable Peronist victory in 2015 opening the way to policies imposing artificial exchange rate stability would have made these futures more realistic) but it is not the prerogative of the court system to sit in judgement over government policies – the task of punishing bad policies corresponds to the voter at the ballot-box now only a few months away. Typical of the Supreme Court’s abstract approach is its insistence on the Buenos Aires Metropolitan Area (AMBA, in its Spanish acronym) not being a legal entity – maybe not but the Avenida General Paz frontier separating the City from Greater Buenos Aires is entirely artificial, crossed by millions every day in both directions.

So was the ruling wrong? Constitutionally (and that is, after all, the Supreme Court’s brief) it is impeccable. While the existence of both national and provincial Education and Health Ministries might seem to suggest a certain ambiguity of jurisdiction, thus creating more scope for federal intervention (especially in an emergency situation), both areas were explicitly decentralised to the provinces in 1991-1992 as a necessary condition for making convertibility viable by removing these two costly, labour-intensive spheres from the national budget which thus moved closer to balance – just a couple of years later the 1994 constitutional reform was equally explicit in spelling out the autonomy of the Federal Capital (where current Cabinet Chief Santiago Cafiero’s grandfather played a stellar role), making the provision of education not so much a right as a duty of City Hall. The fact that this ruling was unanimous (although not as solidly as it might seem since there were three different opinions among the four justices while the fifth, Elena Highton de Nolasco, abstained since she rejected this case as falling within the Supreme Court’s ambit) would suggest that the legal level at least leaves little to discuss.   

Not only was the states’ rights argument strong on constitutional grounds but the national government presented a weak case, especially in its unconvincing demonstration of the correlation between classroom education and traffic circulation. No doubt the extreme shortfalls in  

vaccine deliveries make the federal government feel justified in going over the top against education but two wrongs never make a right.

The arguments can continue indefinitely but in a no-win situation like this nobody is absolutely right or wrong. Perhaps the biggest defect on the part of the courts is to show insufficient respect for the previous elections as a basis for policy while the government shows them too much regard at the expense of the upcoming elections – it is the latter which provides the true verdict on the quality of current policies, not the votes of two years previously. The whole idea of the separation of powers is to achieve a constructive division of labour, not a collision course in which the component forces cancel each out. ​

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