Most of the Court agrees that the request of the Buenos Aires government is within its original competence to declare unconstitutional the decree of necessity and urgency 241/2021 of President Alberto Fernández that suspended face-to-face classes for 15 days. In the next few hours, you will need to decide if you agree to take the case -which includes a request for precaution-, how you will do it and the times to do it.
The five ministers of the highest court, after having enabled the opinion of the Attorney General’s Office on Friday, they held intensive informal consultations this weekend to see if they reached a consensus as quickly as possible.
In procedural terms, this week you should decide whether to accept the CABA request and if so, notify the national government for an opinion on the claim.
Court spokesmen told Clarion what “There are no deadlines” to make a decision on the matter and they called for radio silence.
For now, President Fernández on Friday erred when saying that for the Court, the Autonomous City of Buenos Aires (CABA) does not have the legal status of a province.
Since 2019 with the incorporation of Ministers Horacio Rosatti and Carlos Rosenkrantz, the Court changed its jurisprudence in the so-called “Bazan”, “CABA against Córdoba”, “Corrales” and “Nisman” rulings, among others.
Rosatti, like his colleague Juan Carlos Maqueda, were constituents in the 1994 Constitutional Convention that gave the status of an autonomous city to the Federal Capital. And Rosenkrantz was an advisor to former President Raúl Alfonsín. The only one who voted against this criterion was Highton de Nolasco.
That is to say that for the majority of the Court you have already settled the issue of original jurisdiction regarding this order. From a technical point of view, the request of the head of the Buenos Aires government, Horacio Rodríguez Larreta, It is called a declarative action of constitutionality.
The claim includes an injunction to stop President Fernández’s DNU 241, who suspended face-to-face classes in CABA for 15 days due to the increase in those infected by Covid-19.
Court reacted fast because on Friday, when he received the complaint from the CABA. He immediately requested the opinion of the Deputy Attorney General of the Nation, Laura Monti, who confirmed the competence of the highest court in this matter.
Thus, from a technical point of view, the Court he is in a position to decide whether he agrees to take the case. And then start a procedure to say if DNU 241 is constitutional, which is the underlying issue. It was quite a gesture because it could having waited for Tuesday’s deal to get into it.
Experts in constitutional law observed that the CABA request of more than 60 pages has positive and negative elements.
The first ones are the epidemiological arguments about the few infections in the school and a series of figures about it. The seconds have to do with what does not say clearly that asks the Court for a decision within 48 hours, even though Monday is mentioned as the key date. Plus, He did not argue that the suspension of classes will surely be for more than 15 days.
In other sources who know the courthouse it was discarded For these reasons, there could be an order to suspend the DNU before Monday. On the other hand, in the case of habeas corpus against the government of Formosa for the centers of forced isolation, the Court accepted it quickly. In this case, there was a risk of life.
For now, the members of the Court are “Fed up” that the political leaders of the government and the opposition do not reach agreements among themselves and prosecute their conflicts. “We are not a delivery”say those who know them. Especially when the presentations suffer from technical failures and seem ready for a trial court.
The lack of political consensus ranges from the CABA’s claim against the national government for the withdrawal of co-sharing funds to the Central Bank’s complaint against the CABA for the Lelic tax.
In the meantime, the head of the Buenos Aires government cabinet, Felipe Miguel, He also bet on any possible decision of judges of the Buenos Aires administrative jurisdiction in a dozen cases opened by individuals. He said that if the Court did not reach a decision before Monday – which is most likely – a precautionary measure of lower judges could come out.
One is the protection of the official defender before the administrative and tax contentious courts of the CABA, María Gonzalez Castro Feijoo. Another is from a group of parents before the CABA judge, Marcelo Segon, who is at the fair this weekend. In parallel, the mayor of Vicente López, Jorge Macri, also presented an injunction before the courts of the province of Buenos Aires.
For now, the judge of Administrative, Tax and Consumer Relations of the CABA, Romina Tesone, declared herself incompetent before a request to declare decree 241 unconstitutional.
Meanwhile, in the courts of Comodoro Py they asked “Where is the Minister of Justice, Martín Soria?” in this legal conflict between the CABA and the Nation. According to his official agenda, Soria met yesterday with the Minister of Security of Santa Fe, Jorge Lagna, but on this issue he has a striking low profile.
What’s more, sought consensus to try to get the approval of the Chamber of Deputies for the reform of the law of the public prosecutor’s office that So much interest to the vice president, Cristina Kirchner.
On Friday in her opinion on the jurisdiction, the Procurator before the Court, Laura Monti, maintained that “the City has the same position that the provinces in the regulatory system that governs the jurisdiction of the federal courts and, therefore, the same right to the original jurisdiction of the Supreme Court of Justice of the Nation “.
He added that there is a “right to federal jurisdiction in accordance with the provisions of Article 116 of the National Constitution.”
“I understand that the only way to reconcile both jurisdictional prerogatives is by substantiating the action In this instance“, and cites in that sense a question raised by Formosa before the Court in 2018.
“Consequently, I believe that the process should process before the courts of this Court“and not in the justice of the City, ends the letter of the attorney Monti.
Rodríguez Larreta’s injunction is against article 2 of DNU 241/2021 published on Friday in the Official Gazette, and asks the highest court to order the National State to “refrain, until the issuance of the final and firm sentence, to carry out any act that implies putting into execution the decree in question “.
In its presentation, the Buenos Aires government maintains that the decree “violates the autonomy of the City” e “implies a virtual federal intervention, because powers are assumed over local competences, in health and education “.
The presentation was made on Friday minutes before the head of the Buenos Aires government arrived at the Olivos residence to hold a working meeting with President Fernández, which did not yield positive results. It was in connection with that decision, adopted among the determined measures to mitigate the growth of coronavirus cases in the framework of the second wave of the disease.
In the argumentation of the Buenos Aires presentation, it is indicated that the measure “it is not reasonable” since “the suspension of face-to-face classes arranged it is not justified in empirical data, and it is arbitrary because it obeys exclusively the will of the person who holds the National Executive Power “.
“On the contrary, it is scientifically proven, at the international and local level, that the degree of contagion in schools is minimal“, bases the Government of the City in the presentation before the Court.
They also state that the provisions of the Casa Rosada “constitute a clear violation of the principle of equality, because there is an arbitrary discrimination in relation to the remaining provinces, which can decide regarding the continuity or suspension of the 2021 school year “.
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