November 20, 2014
The Supreme Court has ruled a number of times since the death of Justice Carmen Argibay on May 10 at the age of 72. Argibay’s death left an empty bench that will be symbolically difficult to fill in the top court because she was widely considered as a brilliant independent voice and a staunch champion of women’s rights. But the justice’s demise has also had a practical effect because the Supreme Court now has six members and, due to a law that is in place to downsize it to five, Argibay has not been replaced. The court can still issue its rulings based on a 4-2 majority, but the situation is singular enough for special attention to be paid to its first moves after the loss of Argibay. The justices are not dragging their feet. The Supreme Court on Tuesday issued a decision signed by five justices ruling that increasing the sentence of a recidivist is constitutional. (The ruling was signed by Ricardo Lorenzetti, Elena Highton de Nolasco, Enrique Petracchi, Juan Carlos Maqueda, and Carlos Fayt.)
The decision might sound abstract at face value, but the ruling was not signed by Justice Eugenio Zaffaroni, who was away abroad. The 5-0 decision with Zaffaroni away carries a message in itself because the absent justice is technically considered the Court’s criminal law expert. It was Zaffaroni who presided over the Penal Code reform bill that is up for debate in Congress, which basically considers recidivism as unconstitutional. The legal experts can wrangle at will over the implications of both stances, at a time when public opinion is concerned about crime and the efficient ways to fight it. The Supreme Court majority has made its stance clear when a number of opposition leaders, especially the centre-right Peronist lawmaker Sergio Massa, have launched a campaign against the Penal Code reform. A clear message from the justices on an issue that concerns public opinion and is agitating the political arena is welcome.
There is no reason to expect that this Supreme Court will not conti-nue to speak through the decisions that it hands down. It is also politically wise enough to deal with the awkward situation that a six-member Supreme Court implies, especially because at times it seems at odds with the administration of President Cristina Fernández de Kirchner. Yet it is also of note that the message from the decision is that, now that the polls show a dislike for the Penal Code, the justices appear to be ruling against the work for their peer and criminal law expert, Zaffaroni.