4 October 20205 minute read

Argentina: In a unanimous decision over the appointment of three judges, the Supreme Court asserts its powers and its independence

The Argentine Supreme Court has ruled in a case concerning the appointment and relocation of three federal judges and involving actions by the executive and legislative branches.

The decision is highly significant both from the legal and the political points of view. From a legal point of view, it reaffirms the independence of the judiciary, as required by the Argentine Federal Constitution, and demonstrates that the Supreme Court will maintain its vigilance over the enforcement of the constitutional principle of limitations on the removal of judges. From a political point of view, it indicates the will and capacity of Argentina’s Supreme Court, and of the judiciary in general, to confront political pressures and reassert its independence and its reserved jurisdictional sphere.

The case

Three judges, Pablo Bertuzzi, Leopoldo Bruglia and Germán Castelli, were appointed as judges of the Criminal Court of Appeals, and confirmed by the Senate as mandated by the Constitution. Then-President Mauricio Macri, by presidential decree and without confirmation by the Senate, appointed them as members of the Federal Oral Tribunal 7.  This body is scheduled to hear proceedings in the so-called notebook scandal involving public works in Argentina, a case which also involves Cristina Fernàndez de Kirchner, formerly President of Argentina and its current Vice-President.. Macri did not appoint the three as judges; he simply ordered that already appointed judges within the same jurisdiction be responsible for certain tribunals with vacant seats (in the same jurisdiction and of the same rank). 

The appointment of a judge clearly requires a confirmation from the Senate. What Macri did was nothing new – the same thing had been done before in Argentina, by President Kirchner as well as other presidents. As long as the judge’s rank and the jurisdiction are not altered, it can be considered a lawful act of the president; indeed, one administrative or "housekeeping" order issued by the Supreme Court confirms that line of thought in connection with one of these judges (Acordada Numero 7, which while not a legal ruling serves as a strong administrative precedent).

Next, the Consejo de la Magistratura (the entity that oversees the federal judiciary) decided to relocate those judges to their original posts.  The judges objected and filed a complaint before the Federal Administrative Law Courts. The administrative law judge found against the federal judges but ruled that all their actions should be declared valid. (This has a material effect on the ongoing criminal case against Cristina Fernández de Kirchner, who otherwise could have requested that all the charges against her be declared null and void.)   The judges filed an appeal with the Court of Appeals.

In the meantime, the Senate and the Consejo de la Magistratura began working, around the clock, to fill the posts vacated by judges  Bertuzzi, Bruglia and Castelli. Once those posts were filled, it would have been difficult to reinstate the three judges, even with a favorable ruling by the Supreme Court.

The Supreme Court decision

This decision was reached through the so-called per saltum procedure which allows the Supreme Court, when necessary for reasons of institutional importance, to directly decide certain cases without going through the usual appeals procedure. In the present case, the possible immediate removal of the judges, and their replacement, could have created irreversible institutional damage. The Supreme Court stated in its ruling that normally, with an ongoing appeal process that is moving forward efficiently, there is no room for Supreme Court intervention under a per saltum procedure. However, it stated that the recent events showed that a prompt decision was required in this matter.

The decision was unanimous, which has great political significance, particularly in view of the fact that the Supreme Court justices were appointed by different administrations and have very diverse political backgrounds. It suggests that the Supreme Court is willing to put aside the political differences between its members when necessary to preserve constitutional order.

The decision is not a final ruling, but rather a procedural order applying the per saltum mechanism and placing the case for a final decision by the Supreme Court without going through the normally applicable appeal procedures. It is also significant in as much as it orders that the judges be kept in their original positions until a final decision is issued.

Next steps

The Supreme Court is expected to issue its final decision in the case within the next 30 to 60 days.

The significance of the case

The Supreme Court decision is a clear indication of the Argentine judiciary’s willingness to exercise its constitutional prerogatives and to confront the executive and the legislative branches when necessary to preserve its independence and its jurisdictional powers. With this decision, the judiciary reasserts its function as the ultimate guarantor of the constitutional system, which it has already exercised in several major cases in recent years.