Co-participation: how the legal case will continue after the decision of Alberto Fernández

Alberto Fernández announced that he will pay the City what was ordered by the Supreme Court but in bonds
Alberto Fernández announced that he will pay the City what was ordered by the Supreme Court but in bonds

After the announcement via Twitter of President Alberto Fernández that he will comply with the ruling of the Supreme Court that ordered the restitution of a percentage of the co-participation in favor of the Autonomous City of Buenos Aires, a series of questions are opened about the file that he is processing in the highest court.

On the one hand, Fernández leaves aside the initial position and disavows those who incited him not to comply with the ruling, which will cause enormous internal political noises. The governors who signed the communiqué and who came out to urge the ignorance of the ruling would be, in this scenario, out of place. On the other hand, the President set aside the argument that the Court is against federalism, because it is based on the court’s ruling in the “Santa Fe” case.

In the decision that orders the transfer of funds to the City, the Court does nothing more than repeat the arguments of the sentences handed down in the cases of Córdoba, Santa Fe and San Luis, handed down in 2015, during the presidency of Ricardo Lorenzetti, who it was the first time that the Tribunal dealt strongly with co-participation. Those sentences were signed by Lorenzetti, Fayt and Maqueda. No province complained that there were only three judges. The arguments are similar and now there are four judges, among which there are two -Lorenzetti and Maqueda- who signed the previous rulings. They could hardly have signed another doctrine.

Also since those years, the Court interpreted that the City of Buenos Aires has a status similar to a Province (in rulings on criminal jurisdiction, education, among others) and therefore the original jurisdiction provided for in article 117 of the National Constitution is applicable. .

In all these rulings, the Court argued that co-participation is a matter of agreement and a unilateral decision is not valid, as is actually the case in this case. Thus, the President, citing the case of Santa Fe as an example, admits the decisions of the Court on federalism. Now Alberto Fernández orders to question the ruling by legal procedure. The president said that the precautionary decision of the Court violates the division of powers, lacks foundation, and that the current state of the accounts makes the issue impossible to comply with. That is why he orders to raise a revocation “in extremis” and to challenge the judges of the Court because he considers that they have prejudged. Then he says that according to article 22 of law 23,982 there is no budget to meet the payments and orders the transfer of TX31 Bonds for an amount equivalent to that ordered by the highest court, for ninety days of validity of the precautionary measure. He argues that these bonds were the ones used in the Santa Fe case and that they must be accepted by the Court, “unless the court believes that there are first class cities and second class provinces.” He will also send a bill to Congress to budget for compliance with the precautionary measure.

Strictly speaking, the proposal does not comply with the Court’s ruling. The judgment establishes: “I. Order that, during the processing of the process, the National Government deliver to the Autonomous City of Buenos Aires 2.95% of the mass of funds defined in article 2 of Law 23,548. II. Provide that the transfers corresponding to the provisions of the previous operative paragraph will be made daily and automatically by the Banco de la Nación Argentina”.

For this reason, it is that Fernández first proposes a revocation of the decision and then a way to comply and he does so following the “case of Santa Fe”. This question is important, because, regardless of whether or not they agree, judicial procedures provided for in the legislation are used.

It is also clear that the conflict will continue to follow the times of the process and not those of politics. The National State has until Wednesday to appeal the ruling and the Court must analyze the presentations, which will probably be transferred to guarantee the right of defense.

Regarding the issues to be resolved, it is probable that he will reject the challenges of the judges because they are untimely, they cannot be raised after the sentence and the deadlines established by the Ritual Code have already expired. In addition, the appeal for revocation in extremis is inadmissible in this case and in the current state of the process.

We will have to see the specific offer made by the State in the file, and what the Autonomous City of Buenos Aires thinks of it. It will also be necessary to analyze whether or not Congress deals with this project that the Ministry of Economy would have to send. Another point to examine is whether the State invokes the precautionary law 26,854, to which the Court ruling refers. This law is the one that says that judges may not issue precautionary measures that disturb the assets or resources of the State (art. 9) and it will be necessary to see if the State can prove that this circumstance is verified in the case.

The precautionary law provides -in its art. 13- the necessary procedures so that the Court can then resolve the lifting or maintenance of the measure or its modification, which will take this issue along a judicial track and less conflictive from the institutional point of view.

It is unlikely that the judicial fair will be opened, not only because there is no precedent and it is not a fair matter, but because this procedure has been in Court for two years now and there was no urgency on the part of the parties or the Court to resolve.


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