Unconstitutionality of the Reform to the Council of Magistracy

On June 18, 2013, the Federal Supreme Court of Argentina (the “SC”) granted an amparo action and declared the unconstitutionality of sections 2, 4, 18 and 30 of Law No. 26,855, which approved important reforms to the Council of Magistracy (the “CM Law” and the “CM” respectively), and Decree No. 577/2013, which organized the popular election of the members of the CM.

The ruling was rendered in the case “Rizzo, Jorge Gabriel s/Acción de amparo c/Poder Ejecutivo Nacional”. The main vote of the SC was signed by Justices Lorenzetti, Fayt, Maqueda and Highton de Nolasco. Justices Petracchi and Arbigay issued a concurring vote. Justice Zaffaroni dissented.

The CM Law was launched by the National Executive Branch (the “PEN”) together with other initiatives that were part of a package of reforms to the Judicial Branch under the name ‘Democratization of the Judiciary’, which was submitted to the Congress in April 2013. The CM Law was approved in an expedited legislative proceeding and published in the Official Gazette on May 27, 2013.

Immediately after the CM Law was promulgated, a number of lawsuits were lodged, especially by bars of attorneys and other sectors related to the legal profession. Several federal courts granted injunctions that suspended the effects of the CM Law and the Federal Criminal Court of First Instance No. 1 rendered a judgment holding the CM Law unconstitutional. The Federal Government lodged an extraordinary appeal directly before the SC, which upheld the appealed decision.

The CM was introduced in the Federal Constitution in 1994. The Constitution provides that the CM is in charge of the selection of the federal judges (with the exception of the members of the SC) and of the management of the Judicial Branch.

The Federal Constitution provides that the CM shall be constituted periodically in such a manner as to achieve a balance between the representation of the political bodies arising from popular election, of the judges of all instances and of the lawyers registered before the federal bar. Moreover, it is established that the CM shall be composed of representatives of the academic and scientific sectors, in the number and manner to be provided by law.

The Federal Constitution conferred the following powers to the CM:

i. By public competition, to select candidates to federal lower courts.
ii. To issue binding proposals for the appointment of judges to lower courts.
iii. To manage the resources and execute the budget assigned by law to the Judicial Branch.
iv. To exercise disciplinary powers over judges.
v. To decide the initiation of procedures for the removal of judges, and in the event, order their suspension and decide their impeachment.
vi. To issue the regulations related to the judicial organization and all those required to ensure judicial independence and the effective performance of the judicial functions.

The Federal Constitution, as amended in 1994, provided that the CM would be regulated by a special law passed by the absolute majority of all the members of each House of Congress.

The CM was regulated and put into effect in 1998, by means of Law No. 24,937. This law was amended in 2006, through Law No. 26,080. Finally, in May 2013, the CM Law, on which the SC ruling was based, was passed.

The main features of the Law of CM are the following:

i. The number of members of the CM would be increased from thirteen to nineteen.
ii. The composition of the CM would be as follows;

1. Three representatives of federal judges;
2. Three representatives of attorneys registered before the federal bar;
3. Six representatives of the academic and scientific sector;
4. Six congressmen; and
5. One representative of the PEN.
iii. The members of the CM identified in subsection a. and c. referred to above would be elected by means of popular vote in general elections. Previously, those members of the CM were chosen by their peers.
iv. Candidates to the CM would have to compete under the list of a political party registered in at least eighteen of the twenty-four electoral districts of the country.
v. The CM would be able to initiate impeachment proceedings of judges by a simple majority vote, instead of the two-thirds of the votes required until now.

Finally, the CM Law provided that the reforms to the majority regime, among others, would become effective once the CM’s new membership was operative (i.e., after the elections to be conducted in order to implement the CM Law).

a) The main vote

The vote signed by Justices Lorenzetti, Fayt, Maqueda and Highton de Nolasco declared the unconstitutionality of the Law of CM on the following basis:

i. Pursuant to section 114 of the Federal Constitution, members of the CM must be appointed on behalf of and by mandate of each of the sectors provided therein, which inexorably implies the election of these members of the CM by individuals who belong to those sectors. If these representatives were elected by popular vote, they would no longer be representatives of the relevant sector but, instead, representatives of the general electorate. As a result, the CM Law does not abide by the principle of representation of technical sectors established in the Constitution.

ii. The Federal Constitution provides that the composition of the CM should be a balance between, on the one hand, the political sector and, on the other, the technical sector. The CM Law alters that balance when it provides that all the members of the CM, directly or indirectly, will come from the political sector (since twelve members would be elected by popular vote and the seven remaining members would be elected by congressmen, who also are elected by popular vote).

iii. The CM Law confers an excessive number of representatives to the sector of scientists and academics by increasing them from one to six (double the number provided for the representatives of the Congress, judges and attorneys), despite the fact that section 114 of the Federal Constitution does not confer a central role to this sector.

iv. Election by popular vote is explicitly reserved in the Federal Constitution to political authorities. Since the CM is part of the Judicial Branch, it is consistent that its members are elected in an indirect manner, in the same way as judges are.

v. The CM Law endangers judicial independence by forcing judges to intervene in partisan disputes and to identify themselves with a political party when their work is to administer justice. Therefore, the idea of judicial neutrality vis-à-vis political parties disappears.

b) Concurring vote

The vote of Justices Petracchi and Argibay concurred with the main vote and also declared the unconstitutionality of the CM Law.

According to these justices the purpose of section 114 of the Constitution was to strengthen the independence of the Judicial Branch and to establish a balanced composition of CM by the different sectors (congressmen, judges, lawyers and academics), and the CM Law does not comply with these purposes. This is so, since by providing that all members of the CM should be elected —directly or indirectly— by the electorate, it eliminates the diversity of representation and alters the balance in favor of the political sector.

c) Dissenting vote

Justice Zaffaroni ruled in favor of the constitutionality of the CM Law. He argued, fundamentally, that the text of section 114 of the Federal Constitution is not conclusive and provided for a broad delegation to Congress in respect to the integration of the CM and the manner in which their members should be elected and that, consequently, it is not possible to conclude that the CM is unconstitutional.

As a result of the judgment of the SC, the main aspects of the Law of CM will not become effective in practice. The previous regime established by Law No. 24,937, as amended, will remain applicable in relation to the matters addressed by the provisions declared unconstitutional and inapplicable by the SC.

In light of this ruling, it will be important to follow the judicial decisions that may be rendered in relation to the other laws that were part of the reform package under the name ‘Democratization of Justice’ closely, in particular Laws No. 26,853, which provided for the creation of Federal Courts of Cassation, and No. 26,854, which regulated injunctions requested in proceedings in which the Federal Government or its decentralized entities are a party.

The possibility that, as a consequence of the rulings adopted with respect to these laws, the PEN promotes new initiatives related to the Judicial Branch should not be ruled out.