January 19, 2018
Friday, February 17, 2017

The Fayt fight continues

The Mauricio Macri administration’s avowed intent to renovate the judiciary was the main headline of at least one leading newspaper last Monday but such plans do not seem to be reflected in the government’s extremely passive attitude towards Supreme Court Chief Justice Elena Highton de Nolasco’s bid to override the 75-year age limit in force as from 1994. That bid can be debated in both directions but the same cannot be said of Federal Administrative Litigation Court judge Enrique Lavié Pico’s ruling adjudging that bid to be “reasonable” — and nor can the refusal to challenge this ruling now be considered as anything less than a contradiction with the government pledge to overhaul the judiciary. Not only was Lavié Pico ruling as an interested party when deciding whether judges can be removed — he was arrogating Supreme Court status in presuming to interpret the Constitution (his conclusion that the 1994 Constitution’s clause mandating the retirement of Supreme Court justices at the age of 75 was itself unconstitutional is distinctly bizarre).

Highton de Nolasco being obliged to retire at the statutory age when her late colleagues Enrique Petracchi and Carlos Fayt both continued well beyond might look at first sight like gender discrimination (and that argument has been advanced) but the issue is not quite so simple — unlike Highton de Nolasco, Petracchi and Fayt were both pre-1994 appointments who could argue that the new limits should not be made retroactive. Yet Lavié Pico claimed that these dates were irrelevant because the real issue was whether this limit on judicial terms clashed with the constitutional protection of judges — he might have a point although he is hardly the judge to make the decision himself. Highton de Nolasco thus has some points in her favour although on balance she should go when her time is up (as she herself seemed to accept until recently) — her colleague Eugenio Zaffaroni set a precedent by scrupulously adhering to this limit even though he would have had powerful political motives for defying it and who wants another Fayt hanging on until the age of 97?

Yet above all the government should be more convinced by the legitimacy of its calls for renewing the judiciary — as things now stand, these plans seem to have far less to do with any genuine (and long overdue) reform of the judicial establishment and far more to do with the removal of such magistrates frustrating government aims as Eduardo Freiler in the appeals court or Federal Judge Daniel Rafecas.

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