In the midst of its full-blown crossfire with the Supreme Court, the national government is thinking of including the bill to reform the Council of Magistrates –which they presented in late 2021 and still has parliamentary status– on the agenda for the call to special congressional sessions.
President Alberto Fernández must formalize the call with the list of limited projects for the special sessions. In addition to issues such as the request to impeach the members of the Supreme Court, or the Green Hydrogen Law, for example, sources within the government said that the Executive would keep trying to push through a reform of the Magistracy, on the basis that the format implemented by the Court, and its fate, is one of the reasons why they intend to impeach Chief Justice Horacio Rosatti.
Although the official project calling for 17 council members –three down from the current number– was approved by the Senate, it got bogged down in the lower House and never resurfaced. Nothing suggests that, in the current scenario, the path through Congress would be any clearer now. That is why, within the Casa Rosada, people are beginning to evaluate what could happen if the deadline for the special sessions passes and the bill has not been discussed.
Hardline Kirchnerism has been presenting an idea to the president on how to remove the Supreme Court from the institution that selects judges, and in this context, it’s gaining strength: namely, that he could use a Decree of Necessity and Urgency to pass the project the ruling party had used to try to fight the Supreme Court’s decision declaring the 13-member format unconstitutional on December 16, 2021.
Obviously, this move faces two challenges: the first is that Fernández risks using this tool to go for the Council (something he has resisted before), under the interpretation that he is allowed to use DNUs because he would not be legislating on criminal, electoral, tax or customs matters. The second is the fact that the measure will doubtlessly be taken to the courts, which neither guarantees its success nor that the Council will operate.
The scheme put forward at the time by the Government does not have constitutional obstacles “per se” in terms of the balance of the council’s composition –something the 2021 ruling highlighted as one of the main problems of the 13-member model that had operated since 2006. It would feature the same number of slots per area as the current format for both judges and attorneys (four and four); two academics; and one representative of the Executive. But it would reduce the number of representatives from each House of Congress to three.
This would leave out what is now considered the “second minority” that has created so much tussle and still-unresolved complaints regarding the seat of Martín Doñate since the division of the ruling party’s Senate caucus. The Court saw this as a “ruse” but Kirchnerism believes it was an organizational decision within the Legislative Power, which cannot be overridden. The one sure thing about this format is that it does not hold a slot for the Court, which would immediately displace Rosatti from that seat –currently a goal of the ruling party.
The initiative and its outcome remain a blackboard strategy. This time last year, the projects scheduled for special sessions never reached the floor for discussion in Congress. A year later, the correlation of forces and the willingness for parliamentary debate have seriously deteriorated, so the entire package of initiatives connected to the impeachment and its surrounding issues is conditioned.
The test will be not only its inclusion on the agenda, but also under what kind of climate they intend to introduce the debate in the House of Representatives – ultimately, whether the government is going to use a tool that is potentially solid –such as a DNU– but whose path is guaranteed to go through the courts.