The administrative litigation judge Macarena Marra Giménez rejected an amparo requesting that the unconstitutionality of the act proposed by judge Ariel Lijo and academic Manuel García Mansilla be declared to join the Supreme Court of the Nation and demanded that the National Executive Branch be ordered to submit a new proposal that guarantees the gender diversity.
“As no conflict arises about which the deduced action should address, it becomes clear that it becomes inadmissible,” the ruling stated. The issue is foreign to the essence of the jurisdiction that the Judiciary is empowered to exercise, which is to resolve effective collisions of rights, and do not express an opinion in the abstract about the validity – as in case – of acts carried out by other Powers of the State.”
For the court, “Through the attempted claim, a matter exclusive to other powers of the State would be decided, aimed at ordering how to act and decide, or not, in a certain matter in what may correspond to those in the relevant area of their own competence, in accordance with the republican principle of division of powers, being based on when, how and where, That is, in what specific area of action, the mechanisms of participation and/or control of the political actors that make up the organs of State Power must operate.”
The judge also considered that the invocation of the aptitude of “citizen without the demonstration of a specific harm is insufficient to sustain the legitimacy for the purposes of challenging the constitutionality of a rule or act of government.”
The initiative had been promoted by the constitutionalist Andrés Gil Domínguez. And she was accompanied by Fundación Mujeres x Mujeres, which had adhered to the protection and requested that she be considered as a co-actor. “Since 2005, the National State developed a progressive behavior that guaranteed gender diversity in the integration of the Supreme Court of Justice of the Nation. Under no factual or argumentative point of view is it possible to justify a state regression regarding the composition of the Supreme Court of Justice of the Nation by trying to impose an integration composed exclusively of men,” said the lawyer.
In that context, requested that the Executive be ordered to submit a new proposal that guarantees gender diversity or promotes gender parity in the integration of the highest court in the country. He argued that this proposal arbitrarily and manifestly illegally violates the right to non-discrimination on the basis of gender with respect to access to the integration of the CSJN, “being the constitutional and conventional obligation to promote positive state actions that guarantee real equality.” of opportunities and treatment in the access of women to the integration of the High Court.”
The lawyer stated that “the claim put forward does not seek to question the ethical or academic aptitudes exhibited by Drs. Ariel Oscar Lijo and José García Mansilla, but he highlighted that currently the CSJN is made up of men and with two vacancies to be filled, The National Executive Branch decided to propose two more. It considered that this implies an unjustified regression that violates the right to discrimination based on or based on gender, the constitutional and conventional obligation to promote positive state actions that guarantee real equality of opportunities and of treatment in the access of women to the integration of the Supreme Court and the principle of progressivity and non-regression of the system of rights of the constitutional and conventional State of Argentine law.
Soledad Deza, in her capacity as president of the Women x Women Foundation (MxM), fully adhered to the claim and arguments put forward in the statement of claim, and requests that the Foundation be considered as a co-plaintiff of the amparo action. promoted.
The National State rejected the demand: He spoke of the “lack of active standing” and the lack of a “concrete grievance” and considers that the actor did not prove a real violation of his right. It was also argued that “the contested act is a non-justiciable issuesince it constitutes a ‘proposal’, a nomination of candidates to fill a vacancy and an eventual vacancy (a Minister will turn 75 at the end of this year) in the Supreme Court of Justice of the Nation.”
“The proposals for the appointment of those who make up the Judiciary are preparatory or administrative acts that will form, together with the activity carried out within the Senate, a single will that will be expressed in the Decree of appointment of the judges in the terms of the article 99, paragraph 4, of the National Constitution, once the entire procedure established therein is completed – said the Executive Branch. The proposals, as preparatory acts, are in themselves an internal activity of the Administration, without impact on the sphere of rights and interests of individuals and, therefore, outside judicial control.” In that logic, the court stated that “The action is manifestly inadmissible.”
The judge shared that reasoning. “In the context described and by virtue of what has been pointed out, taking into account the nature and purpose of the route promoted, the truth is that the deduced action cannot prosper, since the presence of a ‘contentious case’ is not noted, since “The conditions invoked by the actors are not suitable to authorize the intervention of the Judiciary in the control they propose,” he stated.
“Ruling on the proposal of the two candidates to fill the vacancies of the Supreme Court formulated by the National Executive Branch without the framework of an adequate cause that enables judicial control would mean moving forward on an issue exclusive to another Branch of the State, andn an evident excess of the jurisdictional function”it was added.
