Foundations for the development of rational law-making in Argentina

ABSTRACT

Recent political changes suggest that Argentina has started a process in which demands for greater transparency in public affairs require a redesign of decision-making processes. Nevertheless, the most challenging feature in the Argentine political-institutional environment is the lack of incentives for introducing better regulation policies. This situation is a consequence – inter alia – of political instability and recurrent economic crises. This article analyses the current situation in Argentina regarding the concept of rational law-making, from the perspective of evidence-based legislative process and procedural judicial review. We conclude that even acknowledging the weight of the longstanding tradition of judicial deference to the legislature and the absence of procedural standards that guide the legislative process, certain judicial decisions hint at the beginning of a path in which traditional constitutional review – basically substantive – incorporates judicial review of rational law-making in order to improve the quality of democracy. The scope of legislative procedural review is open to debate.

KEYWORDS:

• Judicial review
• substantive review
• procedural review
• legislative process
• procedural rationality
• rational law-making
• impact review

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980).

2 C. Nino, Ética y derechos humanos (Paidos 1984) 238–244; C. Nino, Fundamentos de Derecho Constitucional (Astrea 2005) 692.

3 L. Wintgens, ‘Legisprudencia como una nueva teoría de la legislación’ (2003) 26 Doxa Cuadernos de Filosofía del derecho <http://publicaciones.ua.es/filespubli/pdf/02148676RD46905733.pdf> (accessed 12 July 2016).

4 K. Meßerschmidt, ‘The Good Shepherd of Karlsruhe. The “Hartz IV” Decision – A Good Example of Regulatory Review by the German Federal Constitutional Court?’, in P. Popelier et al. (eds), The Role of Constitutional Courts in a Context of Multilevel Governance (Intersentia 2013) 235; K. Meßerschmidt, ‘The Race to Rationality Review and the Score of the German Federal Constitutional Court’ (2012) 6(3) Legisprudence 347, 347.

5 R. van Gestel and J. de Poorter in this issue; P. Popelier, ‘The Court as Regulatory Watchdog. The Procedural Approach in the Case Law of European Court of Human Rights’, in P. Popelier et al. (eds), The Role of Constitutional Courts in a Context of Multilevel Governance (Intersentia 2013) 249; P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6(3) Legisprudence 257, 257; D. Oliver-Lalana and K. Meßerschmidt, ‘On the “Legisprudential Turn” in Judicial Review: An Introduction’, in K. Meßerschmidt and D. Oliver-Lalana (eds), Rational Lawmaking under Review: Legisprudence According to the German Federal Constitutional Court (Springer 2016) 1.

6 Nino, Fundamentos de Derecho Constitucional (n 2).

7 S. Rose-Ackerman et al., Due Process of Lawmaking: The United States, South Africa, Germany, and the European Union (Cambridge University Press 2015) 28.

8 S.R. Carrillo, ‘La racionalidad del proceso legislativo como estándar de control judicial (legisprudence)’ (2016) 5 La Ley Suplemento Administrativo 1, 4; S. R. Carrillo, ‘El control del proceso legislativo por el Tribunal Constitucional Federal alemán’ (2016) elDial.com Biblioteca Jurídica Online <http://www.eldial.com>.

9 A brief description of Argentina’s economy is available in OECD, ‘Competition Law and Policy in Argentina’, in <https://www.oecd.org/daf/competition/Argentina-CompetitionLawPolicy.pdf> (accessed 10 September 2016).

10 Six military coups took place in Argentina during the twentieth century: 1930, 1943, 1955, 1962, 1966 and 1976. The first four established provisional dictatorships while the latter two were intended as permanent dictatorships based on an authoritarian bureaucratic state. In the 53 years since the first coup in 1930, until the last dictatorship fell in 1983, the military ruled for 25 years, imposing 14 dictators with the title of ‘President’. In that period all the democratically elected governments were interrupted by coups. For a comprehensive view of the challenges facing Argentina trying to rebuild its democracy, see L.A. Romero, A History of Argentina in the Twentieth Century (updated edn, Penn State University Press 2013).

11 They were made in some cases with the leading participants in a given sector, in others with the relevant business associations. As of early 2006, there were agreements in several sectors, including: supermarkets (covering 200 products), milk products, books, vegetable oils, cement, soda, private education, meat producers, transportation fuel, shoes, sugar, pharmaceuticals, other food products, paper and petrochemicals. These agreements have implications for national competition policy, which are discussed further below.

12 As of January 2007, the Government intervened with the National Institute of Statistics and Census (INDEC as per the Spanish acronym) leading to the loss of credibility in the official inflation rate, which was systematically underestimated. In 2015, the Government decided to stop calculating this rate, leaving the country without an official inflation index. Opposition Deputies and Senators began publishing an inflation index based on an average of the results obtained from private consulting firms.

13 This section includes the main ideas of the report ‘The Argentinian Public Utilities Regulation: An Overview after the Crisis’ presented by S. Carrillo during the Workshop ‘Privatization, Private Investments and Private Procurement of Public Goods. The European and the Latin-American Experiences’ held at the Friedrich-Alexander Universität Erlangen-Nürnberg in April 2012.

14 The OECD report on ‘Competition Law and Policy in Argentina’, prepared in cooperation with the Inter-American Development Bank, was presented and peer-reviewed at the OECD-IADB Latin American Forum on Competition in July 2006. The report describes and critiques competition law enforcement in Argentina and offers some far-ranging recommendations on how it can be improved. See <https://www.oecd.org/daf/competition/Argentina-CompetitionLawPolicy.pdf> (accessed 10 September 2016).

15 For example, the ICSID panel that resolved in 2005 ‘CMS Gas Transmission v. Argentina’ Case No. ARB/01/8, in spite of determining that the Argentina Republic did not comply with the contract and violated the BIT signed with United States, it nevertheless pointed out that the pretence of maintaining the rates and rate readjustments in dollars was illogical given the new economic context in Argentina.

16 Full notice is available in <http://www.oecd.org/countries/argentina/high-level-oecd-mission-to-meet-argentine-officials-on-fighting-foreign-bribery.htm> (accessed 10 September 2016).

17 C.S.J.N., Verrocchi, Fallos 322:1726 (1999) and Risolía de Ocampo, Fallos 323:1934 (2000). The decisions of the Argentine Supreme Court of Justice are available in <http://www.csjn.gov.ar>.

18 C.S.J.N., Peralta, Fallos 313:1513 (1990).

19 For a comprehensive view of the ‘emergency decrees’ in Argentina, see R.C. Barra, Tratado de derecho administrativo vol. 1 (Abaco 2002).

20 C.S.J.N., Colegio Público de Abogados de Capital Federal, Fallos 331:2406 (2008); Consumidores Argentinos, Fallos 333:633 (2010) and Camaronera Patagonica S.A., Fallos 337:388 (2014).

21 Article 57 of the Constitution of the Province of Buenos Aires sets forth: ‘Any law, decree or order contrary to the above articles or that deprive citizens of the rights and freedoms acknowledged herein, will be deemed unconstitutional and not applied by judges. People who suffer any violation on these rights, freedoms and guarantees shall have the recourse of civil action against the official who authorized or executed said order to seek compensation for the damages that such injuries have caused’.

22 Article 28 of the Constitution: ‘The principles, guarantees and rights acknowledged in the preceding sections shall not be modified by the laws that regulate their enforcement’.

23 See K. Meßerschmidt, ‘The Race to Rationality Review and the Score of the German Federal Constitutional Court’ (n 4) 347. See also R. van Gestel and J. de Poorter in this issue: ‘Proportionality analysis in general consist of four components: (1) testing the legitimacy of a disputed regulatory measure by confirming the government is constitutionally-authorised to act; (2) verifying that the means adopted by the government are suitable and rationally related to stated legislative objectives and in principle capable of meeting the aims pursued by the legislature; (3) critically reviewing the necessity of the regulatory intervention by ensuring that the measure does not curtail the rights of those affected any more than is necessary for the government to achieve its stated goals, which implies there are no less-intrusive alternatives available; (4) balancing between the cost and benefits (in the broad sense and not only in monetary terms) incurred by infringement of the right by the legislature, in order to determine which constitutional values shall prevail’ citing A. Stone Sweet and J. Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47(1) Columbia Journal of Transnational Law 68–149.

24 See R.C. Barra, ‘La legitimación para accionar. Una cuestión constitucional’, in R.C. Barra (ed), Temas de derecho público (Rap 2008) 43.

25 L. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press 2005).

26 M. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton University Press 2008).

27 Even one of the most prestigious Argentine constitutional scholars, Professor Barra, noted in this regard that: ‘ … Congress, representing the sovereign will of the people, does not need to justify or motivate the law, which is, after the Constitution, the most valuable result of that legendary will. Congress does not require parliamentary debate either (…). The Constitution, in its regulations on rule-making and enactment procedures, does not require the debate, although it may undertake this (…) Otherwise, parliamentary debate does not have the same interpretative force when construing the law than that corresponding to the motivation for the administrative act. It can shed light on the thought of each speaker and, although not always, on each of the parties, but not much more. It is not possible to consider that each legislator is an author of the law, this is eventually of the congressional majority, whose intent is not always easy to discover’, R.C. Barra, El acto administrativo (preliminary version for Rap – Astrea). See also Barra (n 10) 307.

28 R. Post and R. Siegel, Constitucionalismo democrático: Por una reconciliación entre la constitución y el pueblo (Siglo XXI 2013) 32-41.

29 P. Popelier and A. A. Patino Álvarez, ‘Deliberative Practices of Constitutional Courts in Consolidated and Nonconsolidated Democracies’, in P. Popelier et al. (eds), The Role of Constitutional Courts in a Context of Multilevel Governance (Intersentia 2013) 200.

30 For a comprehensive view of the political questions in Argentina, see R.C. Barra, ‘La resolución judicial de los denominados “conflictos de poderes”’, in R.C. Barra (ed.), Temas de derecho público (Rap 2008) 141.

31 C.S.J.N., Province of Chaco, Fallos 321:3236 (1998).

32 C.S.J.N., Petrus, Fallos 210:855 (1948).

33 C.S.J.N., Provincia de Chaco, Fallos 321:3236 (1998).

34 C.S.J.N., Bussi, Fallos 324:3358 (2001) and 330:3160 (2007).

35 A brief description of the legislative procedure in Argentina is available in <http://www.congreso.gob.ar/leyes.php>. For a comprehensive view, see E. Menem, Derecho procesal parlamentario (La Ley 2012).

36 See Senate regulation, D.R. no. 1388/02 and the Chamber of Deputies, resolution no. 2019/96.

37 See A. Gordillo, ‘Access to Justice, Legal Certainty and Economic Rationality’ in Tratado de derecho administrativo, vol. 11 (FDA 2015).

38 Popelier and Patino Álvarez (n 29) 200.

39 See A. Gordillo, Tratado de derecho administrativo (vol. 2, 9th edn. FDA 2009).

40 The ‘amparo’ it is a remedy for the protection of individual rights against unlawful acts or omissions of public authorities or private parties. It is a summary and inexpensive judicial procedure that does not require previous exhaustion of administrative remedies. The decision may include the declaration of unconstitutionality of statutes. See Art. 43 of Argentina Constitution.

41 C.S.J.N., Mendoza, Fallos: 331:1622 (2008), LL 2008-D, 458. Several people, alleging to suffer from the environmental pollution brought about by the Matanza-Riachuelo hydric basin caused by the lack of adequate controls (petrochemical, textiles) sued the federal Government, the Buenos Aires Province Government, the Buenos Aires City Government, and 44 private companies. The Supreme Court admitted the lawsuit, the object of which was the defence of a collective asset, and referred the compensatory claims to lower courts. In C.F.C.A., Sala III, Schroder, LL, 1994-E, 449 standing to sue was acknowledged to a person residing in Buenos Aires Province who challenged a public national and international tender for the selection of investment projects, installations, and operations of hazardous waste plants. The court held that the plaintiff´s condition of ‘affected’ had been duly proven by his ‘personal and direct interest’ motivated by his residing in proximity to one of the plants.

42 Acknowledges the right of users and consumers to the safety and protection of their economic interests, to adequate and truthful information, to freedom of choice, and to equal and dignified treatment.

43 C.F.C.A., Sala IV, Youssefian, LL, 1998-D, 712. Standing to sue was admitted in this case for a telephony user, who presented his claim for the Communications Agency to refrain from extending the period of territorial exclusiveness for the licensees without a prior public hearing. In addition, standing to sue was also accepted for a subway user of Buenos Aires City to claim for the increase in fares; he claimed that as a resident of Buenos Aires City he would be affected by the application of said fares, C.F.C.A., Sala IV, Fernández, LL, 1997-E, 535.

44 For example, standing to sue was admitted for a differently-abled lawyer, who sought to compel the Government to comply with its obligations imposed by the comprehensive protection system for differently-abled people, facilitating Access to the federal court buildings, C.F.C.A., Sala II, Labatón, LL, 1998-F, 345. An analogous decision was reached regarding the claim raised for the performance of all necessary works to enable the access of differently- abled people to all the stations of a train line, C.F.C.A., Sala I, Verbrugghe, ED, 185–995.

45 C.F.C.A., Sala IV, Viceconte, LL, 1998-F, 102. In this case, standing to sue was acknowledged for a person at risk of acquiring haemorrhagic fever because he lived in an area in which this pathology is endemic. He filed an ‘amparo’ claim to order the Government to execute all necessary measures to provide for the continuation of the production of a vaccine, ensuring the supply for the entirety of the population of the affected zone.

46 Gordillo (n 39).

47 C.S.J.N., Halabi, Fallos 332:111 (2009); LL, 2009-B, 157. A lawyer filed an ‘amparo’ process aimed at declaring the unconstitutionality of Law No. 25.873, claiming that said law violated his right to privacy (Art. 19 of the national Constitution) by authorising the compatible agencies to intercept telephone and internet communications. The Appeals Court confirmed the ruling of the federal judge who declared its unconstitutionality and in addition extended its erga omnes effects. The federal Government appealed the scope of the ruling before the Supreme Court. The Supreme Court dismissed the appeal and confirmed the ruling.

48 S.R. Carrillo, ‘Los procesos colectivos ante una futura regulación procesal’ (2011) 394 Revista Argentina del Régimen de la Administración Pública 189.

49 S.C.B.A., O’Connor, no. I. 2107 (2009) <http://juba.scba.gov.ar/VerTextoCompleto.aspx?idFallo=39921> (accessed 12 July 2016).

50 Meßerschmidt, ‘The Race to Rationality Review and the Score of the German Federal Constitutional Court’ (n 4) 347.

51 S.C.B.A., Asociación para la Protección del Medio Ambiente y Educación Ecológica 18 de octubre, no. I.72.760 (2015) <http://juba.scba.gov.ar/VerTextoCompleto.aspx?idFallo=127716> (accessed 12 July 2016). A similar criteria was applied regarding urban regulation for county statutes that retrogressed protection regimes, e.g. by flexibilising urban indexes and decreasing the regime for the protection of architectural landmarks in La Plata City, S.C.B.A., Fundación Biosfera, no. I. 71.446 (2011); by reverting the prohibition to fumigate and the use of agrochemicals within a radius a 1000 metres of urban centres, reducing said limit to 100 metres, S.C.B.A., Picorelli, no. I 72.669 (2014); for the creation of an industrial district within a residential urban area, S.C.B.A., Rotella, no. I. 70.771 (2012); by altering significantly the general parameters set forth by the law of land use, modifying the factor of occupation, S.C.B.A., Mitchell, no. I. 72.267 (2013).

52 C.F.S.S., Sala 2, Fernández, no. 73005 (1999).

53 Rose-Ackerman et al. (n 7) 263.

54 Rose-Ackerman et al. (n 7) 263.

55 See also I. Bar-Siman-Tov, ‘Semi-Procedural Judicial Review’ (2012) 6(3) Legisprudence 271, 271 where the author also develops the idea of ‘semi-procedural judicial review’ as a judicial review model in which courts determine the constitutionality of legislation based on an examination of both the statute's content and its enactment process. Instead of treating substantive and procedural review as two separate spheres, it merges the examination of the statute's enactment process with the substantive judicial determination of the statute's constitutionality.

56 C.S.J.N., Soria de Guerrero, Fallos 256:556 (1963).

57 C.S.J.N., Polino, Fallos 317:335 (1994).

58 U.S. Supreme Court 341 U.S. 123, 149 (1951).

59 C.S.J.N., Nobleza Piccardo, Fallos 321:3487 (1998).

60 See also U.S. Supreme Court 495 U.S. 385 (1990).

61 See also C.S.J.N., Fallos 321:3487; 322:1616; 324:3358; 330:2222.

62 C.S.J.N., Thomas, Fallos 333:1023 (2010).

63 C.S.J.N., Binotti, Fallos 330:2222 (2007).

64 Nino, Fundamentos de Derecho Constitucional (n 2).

65 Oliver-Lalana and Meßerschmidt (n 5).

66 Rose-Ackerman et al. (n 7) 272, citing C. Engel, ‘Inconsistency in the Law: In Search of Balanced Norm’, in C. Engel and L. Daston (eds), Is There a Value in Inconsistency? (Nomos 2006) 221-225.

67 See Oliver-Lalana and Meßerschmidt (n 5) 2, citing former judge of the Federal Constitutional Court, Willy Geiger, and Professor Klaus Schlaich.

68 Rose-Ackerman et al. (n 7) 272.

69 Robert Burt proposes an interesting distinction between the position in which the judiciary performs the role of ‘final interpreter’ of the Constitution and the ‘Madison's institutional answer’ guided in the balance of powers regarding constitutional interpretation. See R. Burt, The Constitution in Conflict (revised edn, Belknap Press 1995) 34. See also The Federalist Papers, nos 9 and 78 and 10, 39, 48, 49, 50 and 51 respectively.

70 In the case on the salary of professors in Hessen the German Federal Constitutional Court stated that it largely shares the viewpoint that ‘pursuant to the Constitution, the lawmaker owes only a valid law’, but also points out that this view only holds ‘in principle’, since the protection of fundamental rights and basic constitutional norms may eventually require ‘compensatory’ checks in order to ensure that legislative choices have been sufficiently and openly justified – e.g. in that they have been premised on well-made diagnoses and prognoses about the legislative facts and impacts. 130 BVerfG 263 para 164 <2 BvL 4/10> W2-Besoldung.

71 Meßerschmidt, ‘The Good Shepherd of Karlsruhe. The “Hartz IV” Decision – A Good Example of Regulatory Review by the German Federal Constitutional Court?’ (n 4) 246: ‘The obligatory legislative amendment of unconstitutional law, by the way, is quite common in Germany, since the Federal Constitutional Court makes only careful use of its power to declare Acts of Parliament null and void, since, in the interest of legal clarity, unconstitutional provisions remain applicable until new provisions are adopted by the legislature. This interim solution also serves the interest of legislative discretion, which, however, is limited by the ordinances of the Court decision’.

72 Tushnet (n 26) 23.

73 Post and Siegel (n 28) 32–41.

74 Tushnet (n 26) 33.

75 P.W. Hogg and A.A. Bushell, ‘El diálogo de la carta entre los tribunales y las legislaturas’ (2013) 14(2) Revista Argentina de Teoría Jurídica <http://www.utdt.edu/ver_contenido.php?id_contenido=9173&id_item_menu=5858> (accessed 12 July 2016).

76 M. Tushnet, ‘Revisión judicial dialógica’ (2013) 14(2) Revista Argentina de Teoría Jurídica <http://www.utdt.edu/ver_contenido.php?id_contenido=9173&id_item_menu=5858> (accessed 12 July 2016).

77 125 BVerfG 175 <1 BvL 1/09> Hartz IV-Gesetz. In this judgment, the Court resorted to a doctrine that set out to control whether lawmakers had consistently, plausibly and transparently deployed the legislative fact-finding method they had previously opted for, and subsequently pronounced the regulation unconstitutional because of shortcomings in all those respects. See Oliver-Lalana and Meßerschmidt (n 5) 2–3.

78 K. Meßerschmidt; I. Bar-Siman-Tov in this special issue.

79 Popelier and Patino Álvarez (n 29) 200.

80 C.S.J.N., Rosza, Fallos 330:2361 (2007) and Uriarte, Fallos 338:1216 (2015).

81 C.S.J.N., Itzcovich, Fallos 328:566 (2005) and Anadon, Fallos 338:724 (2015).

82 S.C.B.A., Sarrachaga, no. B. 73.126 (2016).

83 S.C.B.A., Colegio de Abogados de la Provincia de Buenos Aires, no. B 64.474 (2003).

84 S.C.B.A., Verbitsky, no. P. 83.909 (2007).

85 C.S.J.N., Mendoza, Fallos 329:2316 (2006).

86 C.S.N.J., Salas, Fallos 331:2925 (2008).

87 Art. 113 of the Buenos Aires City Constitution. Regarding access to justice it is also a good example of existence of deliberative practices in judicial review.

88 J. Scott and S. Sturm, ‘Courts as catalysts: Re-thinking the judicial role in new governance’ (2007) 13(3) Columbia Journal of European Law 565, 565.

89 Nino, Fundamentos de Derecho Constitucional (n 2).

90 I. Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 91(6) BULR 1915, 1934 and I. Bar-Siman-Tov (n 55) 271.

91 A. Daniel Oliver-Lalana in this issue.