At the Faculty of Law we are taught and we always teach to respect the judgments of judges because this is a fundamental pillar of the Argentine constitutional system and because this is one of the most forceful lessons that humanity learned in its universal fight once morest arbitrariness. In that same class we also learn to appreciate judicial precedents (case law) as a touchstone of the system and as a luminous foundation on which legal certainty seeks calm. It is precisely in those first classes that the principle of the supremacy of the law penetrates deeply and when we begin to understand the control exercised by judges in our system to guarantee the constitutionality of the norms issued by Congress (laws) or the Executive Power (decrees). ).
Forged under these premises, Judges are, as a general rule, reluctant to change and tend to administer justice without raising dust and many times this itself leads them to resolve with an exasperating parsimony. Judges are aware of this and probably find greater comfort in resisting changes, but they also know that administering justice in an open, changing and democratic society requires them, in the short or long term, to adopt a change in criteria.
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The clearest example of this struggle between the old and the new is seen today with the indefinite re-election of executive positions (president, governors and mayors). If we leave aside the case of the presidents, because our constitution has been in charge of expressly prohibiting it, Argentine society and justice have historically admitted the validity of the indefinite re-election of governors and mayors, but there are no more arguments to support it and the legislative debates in the province of Buenos Aires in recent years have made it clear. For this reason, it is desirable and expected that during 2023, once the candidates have been defined, society and the judiciary will challenge all candidates for governors and mayors who intend to continue in their posts in an anti-republican manner under the pretext of the constitutions or provincial norms that enable them to introduce yourself once more
The Advisory Opinion OC-28/21 of the Inter-American Court of Human Rights (IACHR) of June 7, 2021 deals with the case of the indefinite re-election of presidents, but its conclusions are radiated and projected with perfect analogy to governors and mayors. of the Argentine federal system.
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This is not the place to reproduce all the arguments expressed by the majority of the Inter-American Court of Human Rights (nor those of Zaffaroni’s minority vote) but the conclusion was categorical. From a systematic reading of the American Convention, including its preamble, the OAS Charter and the Inter-American Democratic Charter, they concluded that enabling indefinite re-election (more than two terms) is contrary to the principles of representative democracy and, therefore, therefore, to the obligations established in the American Convention and the American Declaration of the Rights and Duties of Man.
In the year 2023, society and the judges will have the opportunity to take a leap in quality in our institutions. And as Fayt said in the “Rodríguez Pereyra” case, there is no need to be afraid of changes in the jurisprudence: “… the authority of the precedents must yield before the verification of the error or the inconvenience of the decisions previously made (… .). Sticking to what has been previously decided is a basic principle of judiciary justice and the need for certainty in the application of the law. However, this rule leads to unfair solutions when its mechanical application ignores relevant elements such as those mentioned ut supra with the consequent impairment of the constitutional rights at stake…”.
The author is a Lawyer, Master in Business Law and Professor of Constitutional Law
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