The current crisis in the Supreme Court of Justice of the Nation (CSJN) is a historic opportunity to revitalise and expand the Federal Pact.

By Miguel Julio Rodríguez Villafañe

The Preamble of the National Constitution of 1853/60 established, as one of its fundamental objectives, that of “Strengthening Justice” and determined the direct participation of the provinces in the formation of the Court. This court, among other competencies, is in charge of deciding issues between the provinces and the Nation, in an “original and exclusive” manner (art. 117 Const. Nac.). It was the central axis of the Federal Pact of the 14 pre-existing provincial entities and the new entity “Nation” that was being created, which the Preamble made clear was constituted “by the will and choice of the provinces that compose it”.

At the same time, it was established that each province should ensure its “administration of justice”, under penalty of being intervened by the national government (arts. 5 and 6 Const. Nac.).

The national constitution left the organisation of the composition of the CSJN, its dynamics and the regulatory norms to reach it, by extraordinary appeal, in the hands of a subsequent law.

In turn, the regulation dictated for the country took the federal legal structure of the United States of America, in which each state – equivalent to the Argentinean provinces – dictates its own procedural codes and substantive codes, such as criminal, civil, commercial, labour, etc. This is in contrast to Argentina, where the substantive codes are dictated by the nation and the procedural codes are dictated by the provinces (art. 75, inc. 12 Const. Nac.).

All of which brought about the need to work on a jurisprudence unifying basic criteria in our country, in the same interpretation of the substantive regulation. In this respect, the ground for extraordinary appeals to the CSJN for “arbitrariness” was developed. In its application, this ground transformed the Court into a real court of cassation for the application of substantive law in each province, on the basis of which the court could annul any provincial ruling as arbitrary. Thus, in the end, the highest court in the case was no longer the highest provincial court where the case took place, but the CSJN.

The aforementioned has resulted in an overload of cases in the highest court in the country. Thus, in the plenary session of the Senate’s Justice and Criminal Affairs and Constitutional Affairs commissions on 11 May 2022, which dealt with the issue of reforming the CSJN, the former minister of the court, Eugenio Raúl Zaffaroni, said that “17,000 signatures a year”, which is equivalent to “one every half hour, without sleep, Saturday, Sunday and holidays” and added, “it is inhuman and there is no one who has the capacity” to resolve cases in this way.

Also, according to article 280 of the Code of Civil and Commercial Procedure of the Nation, the CSJN can reject appeals without giving grounds (certiorari). In this respect, Zaffaroni said that “they brought him piles of little cards with little pieces of paper inside to sign and they told him these are 280”, and he did not know the issue he was deciding.

All that lent itself to and lends itself to there being first- and second-rate rulings, some of which the minister is able to hear and rule on, and other cases that he or she was unable to study or know what he or she was ruling on. What is certain is that the majority of the resolutions were drafted by almost 200 officials who write the decisions of the CSJN. This transforms the court, in fact, into a 205-member body, the five members provided for in the current law, added to the other drafters, who are not magistrates, but who decide, due to the impossibility of those who sign the sentence to know the case.

Evidently, the current CSJN, with the very high degree of delegation of functions to people who are not judges of the court whose projects are not personally controlled, no longer fully fulfils the federal role entrusted to it, which is the way in which the highest judicial body of the federal country should act, in order to strengthen the value of justice for the whole country, in equality and equity, as required by the Constitution.

At the same time, we are witnessing a moment in which there is an impasse between the ruling party and the opposition, as a result of which it has not been possible to appoint the Attorney General of the Nation, who acts before the CSJN, nor has a woman been proposed to fill the existing vacancy. Faced with this situation, the governors of 18 provinces took the country by storm and agreed on a project that seeks to “federalise” the Court and give it greater legitimacy in its functioning. A CSJN made up of one representative from each province and the CABA and one from the nation is proposed, which would raise the Court from five members to 25, respecting gender parity, which could temporarily be 29, if the four existing members are maintained. This should not be a cause for concern, because, as has been said, there are currently 205 members of the tribunal.

It should also be noted that there are courts with similar or more members, such as Chile with 22, Colombia with 23, Spain with 80, France with 120, Italy with 50, and so on.

The project helps to respect the men and women located, with time and space, and to enrich with the contribution and viewpoint of each of the corners of the country, expanding the existing federal pact and the wealth in the various specialities of law. Otherwise, it makes no sense for the judges of the first instances to be required to reside in the place where they administer justice, if everything will be definitively resolved on appeal in the CSJN, in the city of Buenos Aires.

Furthermore, the bill stipulates that a special law will determine how the CSJN is to be organised and how it is to function, and adds that decision-making majorities will be established in accordance with the incorporation of new members. In this way, the future of the country will not be in the hands of a majority of three people, as is currently the case.

The project should be supported; it is a valuable institutional and federal solution.

Miguel Julio Rodríguez Villafañe is a constitutional lawyer from Córdoba and an opinion journalist.