The ruling of the Supreme Court of Justice that validated the autonomy of the City of Buenos Aires To define the continuity of the face-to-face classes and deactivated the National DNU that had suspended them, it had the four coinciding votes of the judges Carlos Rosenkrantz, Ricardo Lorenzetti, Juan Carlos Maqueda and Horacio Rosatti, and the abstention of Elena Highton de Nolasco, who in previous rulings argued that these types of cases are not of original jurisdiction before the highest court.
The President of the Court, Rosenkrantz, is clear in its position to recognize the autonomy of the City to define its measures. “The Government of the City of Buenos Aires has active legitimacy to defend the sphere of its constitutional attributions against acts of the National State that it considers harmful to its political autonomy, “he maintains at the beginning of his vote. And he adds in that line that” it has all the powers of internal legislation similar to those enjoyed by the Argentine provinces“.
Regarding the specific demand, he wields, also in defense of the Buenos Aires position: “We must not forget that in the case the competition for the provision of the educational service is discussed, neither more nor less, that the provinces and the City of Buenos Aires are constitutionally obliged to ensure as a precondition of the federal guarantee of the enjoyment and exercise of their institutions (art. 5, National Constitution). Said obligation imposes special responsibilities on the educational establishments that law 26.206 places under their jurisdiction. makes it unacceptable that the claim to limit the competence of the City of Buenos Aires and the provinces by the National State is based on purely conjectural considerations connected to the presumed effectiveness for the realization of other objectives that the National State may consider as socially valuable.
Rosenkrantz deepens his arguments by referring to the health emergency situation raised by the national government in its DNU. In that sense, his position is blunt: “The emergency is subject to the law in this country, as it is also a legally regulated situation and it does not imply in any way that any measure that could be represented as effective to address the situation is, for that reason alone, constitutionally admissible. It should not be forgotten that the emergency, while it may provide the occasion to exercise an existing power, does not create new powers“In another extract from the text, it is clear when stating that” the emergency It is not a franchise to ignore the current law“.
For its part, the vote of Lorenzetti it coincided with that of Rosenkrantz in the general guidelines, although it had its own imprint with some specific considerations. The former president of the Court held that “hThere is a human right to education that must be fulfilled to the greatest extent possible because it is the one that defines the development opportunities of a person ”.
Regarding the autonomy of the City, he equated it with the rest of the provinces. “The CABA and the provinces can regulate the opening of schools in accordance with the provisions of Law 26.206 and Resolution 387/21 of the Federal Council of Education, prioritizing the opening and resumption of face-to-face classes.”
Lorenzetti He also pointed to a future position, since it considers that the conflict can be replicated in time, beyond the renewal of the DNU. “The fact that the strict observance of the procedural terms of the summary judgment has exceeded the short term of temporary validity of the challenged DNU, does not prevent this Court from issuing a ruling, since circumstances such as those examined in the case may be extended or repeated in the future, ”he said.
Those who expressed themselves through a joint vote were Rosatti and Maqueda, who argued that the DNU signed by the national government deprived the constitutional autonomy of the City of Buenos Aires and that the arguments of the national state “they are not enough” to justify “the exercise of a federal sanitary competence that has such a drastic impact on the modality of Buenos Aires teaching “.
“The due Safeguarding constitutional federalism required that the national State sufficiently justify the exercise in the case of its specific health competence in relation to the specific order to suspend the dictation of face-to-face educational classes at all levels and in all its modalities in the jurisdiction of the plaintiff ”, they argued in a section of the text, in reference to the autonomy of the City.
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