November 23, 2014
Per saltum assaulted II
The Supreme Court’s top-speed unanimous rejection on Monday of a per saltum on the injunction freezing application of the Broadcasting Law’s Article 161 (divestment) to the Clarín Group looks at first glance like an all-out clash between the executive and judicial branches but the move is really far closer to evasive action than confrontation. The Supreme Court was actually doing the Cristina Fernández de Kirchner administration a favour by so rapidly clearing the decks in order to apply the per saltum where it belongs, thus not allowing any further time to tick away in the 10 days to appeal last Thursday’s adverse ruling — the Supreme Court can only credibly rule on the constitutional fundamentals of the Broadcasting Law after a first instance and not on a procedural technicality over a single article and a single plaintiff where the government was completely wasting everybody’s time. While appeal and counter-appeal run their course over last Thursday’s injunction, the judge deciding the constitutional validity of Articles 45 and 161 disputed by the Clarín Group (Horacio Alfonso) thus has time to reach his conclusions, enabling the Supreme Court to have the last word (indeed the justices again urged Alfonso to rule promptly). Even if a gratuitously pugnacious CFK administration seems to be doing everything possible to lose this war, defeat is by no means a foregone conclusion — the Supreme Court might well finally let CFK have her way although not in the way she wants it.
A determination to avoid dangerous precedents and to preserve the credibility of the per saltum mechanism has led the Supreme Court into maintaining the appearance of full impartiality by ruling against both sides in the dispute — earlier it knocked back Clarín’s challenge of the per saltum on the grounds that whatever the doubts about the “institutional gravity” of this issue, it could not reject the mechanism in case genuine institutional gravity should arise while now it is ruling against the government’s bid to misuse per saltum at a procedural level. But once Alfonso rules, Clarín’s injunction could rapidly crumble — if he upholds the constitutional validity of the law, Clarín’s right to appeal would not save it from losing the protection of the injunction against the law’s application, while if he rules against, the Supreme Court would have the opening to step in.
The big question is whether the CFK administration grasps all these subtleties or whether its talibans or the sheer force of rhetoric will not lead it to blunder into a needlessly destructive clash between the executive and judicial branches.