Control judicial de la política: ¿Cual es el límite? | Néstor Pedro Sagüés | TEDxPergamino

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one of the characteristics of this

event is that it is called to treat

very different topics

that merits maybe the meeting to me

touch something that is serious and the same time

which is very important

these moments particularly in

Argentina but not only in Argentina

which is the issue of the politicization of

judicialization but the

judicialization of politics

if we can take a couple of indicators

nothing else

in the last days in the past

months twice the federal judges of

first instance the united states have

prevented the application of an order

executive of the cheating president who

prevented citizens from entering the country

from several states

Muslims is an order issued by the

president for security reasons

however it has been blocked by the

judicial power with the argument that

it would be a provision

discriminatory receive of rights

constitutional and justice which

will make the decision to stop the

president in argentina in the month of

December we had a debate about

how the band was transferred

Presidential and batf baton

the debate was whether it was going to be done in the

Congress if from the pink house if

it was the previous president who

made the transfer if the

president who was going to receive those

attributes by themselves

the problem was solved by a court

by a court of first instance

federal of the city of buenos aires e

He even established the hours of

termination of the mandate of the

president maría cristina fernández de

kirchner the moment of the assumption

president’s presidency of Mauritius

macri and who governed the country in that

inter

where the president was and

the new president assumed something

historically singular is not

provided for in the constitution and it was a

court that decided such a situation

In Argentina, the judges have decided

rather too detailed situations

singular argentina has the greatest

world record in amparo actions

against the state and that if you are that

when the moment of the famous corralito

there were around 350 thousand lawsuits

that overwhelmed the capacity of

the federal courts and there were thousands

of millions of dollars taken out the

extracted by the judges of the

vaults of the banks to grant them to

Depositors in installments

fixed in dollars that is to say we have a

judicial activism a judicial gymnastics

very striking constitutional that

there are also other countries but not

in the dimension so quantitatively

appreciable as we here emerge

the problems why this happens is

happening is happening with the power

judicial that if you read it

in the national constitutional text

you will find that I give you a

so tan active so intense

because before there were issues of

management territories existed matters

that the so- called political issues

not justiciables in English are

he called politics les qüestions what

call still now for example what

regarding national security

for example regarding relationships

outside of the granting of pardons

of amnesty for example what concerns

to the determination to build the

state policies or the

determination of public rates

a few months ago the supreme court of

justice of the nation determined with

reference to gas rates

remember you but nullified because

had been taken by the state without

the previous hearings to discuss them

and in addition the supreme court determined

how should the gas rates be

say that they should be gradual in a

increase and that they had to take into account the

economic capacity of the user and

gas consumer

in such a way that he advised the government

establish different categories of

contributors of users according to

of your economic capacity to be able or

do not pay the gas bill that’s what I say

decades ago it was unimaginable

it was considered a reserved issue

the president reserved to the congress for

a question about which should not

intervene the judicial power

the question is why today intervenes

because the judiciary has passed to

judicial hoist political issues issue

not justiciables

let’s clarify one thing about the

Constitution says nothing about

what are the political issues

the parties and what are the

non-justiciable political issues do not

is decided bleu by the courts

it does not say ours does not say

practically no constitution of

world because that’s who invented that

there were political issues not

justiciables of the supreme court states

States already in 1803 and has been a whole

tradition in the matter

the map lists the catalog of

political issues not justiciable

a few years ago it was immense relationships

exterior intervention of provinces

state policies

how I said pardons or amnesties

determination of education plans

etcetera etcetera

they were subjects where the judges said

Here we put us 40 years ago and

person without resources entered in a

public hospital in the hospital les

I said look sr

we do not have

to buy this or that medication that

this one precise that person had in his

mind a right the right to die

today it seems that people do not want

to die the agent write and that the

people hit the doors of the

courts when he does not find

satisfaction to their claims in the

presidency or in the congress

the first indicator then because the

judicial power advances is or are the

social claims to demand certain

rights recognized in the constitution

but before if they were not

if they were not determined and they were not

regulated and were not covered by

the president of the congress were

practically no rights were rights

theoretical or were constitutional poetry

but they were not constitutional right

then the first indicator is the people

demands from the courts issues that

before I did not demand the second factor

what can we quote to explain why

increases the number of issues

judicial

today ex not justiciables in the pressure

of international law of

human rights argentina signed a

pretty impressive amount of

treaties declarations instruments

international rights

humans who recognize a series

important rights to people and

Your rights are accepted by the state

but they have an international source and those

rights penetrate the right

Argentinian

some of those treaties have

even after the reform

constitutional law of 1994 have a hierarchy

or constitutional rank or abstain

same value

the constitutional text the right

constitutional international law

of human rights is a right

very demanding very demanding very

impetuous and who runs it to that

international law of rights

humans

theoretically all the organs

the state only the executive power

theoretically the congress that should

regulatory laws dictate laws

implementation of those rights

international

but what happens if that does not happen or not

occurs on the life scale

if you read the international pact

of social and economic rights and

cultural

you will see that they are fully recognized

the right to life the right to life

feeding the right to education

The right to housing

the right to health but not as

theoretical statements but as a

expression of some authors

American Americans with teeth is

say right they bite right that

they demand to be implemented and regulated and the

people when you do not have satisfaction the

scope of the congress in the field

president is going to claim such

powers of the judiciary

I’m going to mark a third indicator

also briefly to demonstrate the

why this growth of the

judicialization of certain issues

policies

previously the defendants and this

factor is the abstinence community the

attitude of washing hands before

certain problems on the part of

president and congress and transfer them to

power of attorney

let’s forget a second argentina let’s

united states two important issues have

been solved practically by the

Supreme Court

Two controversial issues with much debate

controversial

I am referring to the case of

marriage gay marriage or abortion

who finally resolved those

issues right or wrong do not interest here

is not the time to treat them could

give rise to another exhibition what

resolved the supreme court of justice

the united states and many times the

own president of the congress itself

let the problem be solved by

the courts and not for those same

because because that exempts them from

political responsibilities

the abortion I decided

the supreme court the united states is not

responsible president is not responsible

of the congress decided the court but the

court divided society

North American

American society was already

perfectly divided between

supporters or non-supporters of abortion

free

at a certain moment in a certain period of

three months immediately after the

pregnancy

well the cfe the transfer of

political responsibilities was

impeccable

by this it means that sometimes

it’s the executive himself and the legislature

that indirectly sponsor is that

I turn that pass that take transfer

of executive decisions and the

legislative to the congress

finally of course we can not

stop mentioning certain activism

judicial in crescendo on the rise

sponsored by some doctrine that comes

of comparative law is not invented

Argentina the neoconstitutionalism by

example a news that interests you that

the rights have validity of the

rights are required

no matter who consumes them who

do what’s important for this

position is that rights live

exist be fulfilled

you will say but that was not homework

historical of the judiciary

completely if indeed if

you read montesquieu de chilena

hans kelsen by so many famous authors

around the judiciary and the

constitutional courts

they did not imagine a judiciary

so active so short gymnastics

constitutional like the one we have today

perfect but neoconstitutionalism

He said two words I care less

division of powers that the validity

of rights and if the rights to

demand to be valid claim

judicial support act the judges before

the negligence before the omission

the leisure of the presidency or of the congress

then we have a transformation

evident

I will do little not negative but a

little hard looking now towards the future

you will tell me good but this as

paints from now on that is going to

pass a judicial power that for a

nineteenth century classical jurist

beginning of the 20th are power that is being

meddling in political issues

for others instead they come

interfere in order to ensure the

validity of rights

where is the border where is the

line that says this is justiciable

decide for justice this is not

justiciable ladies and gentlemen

the sad thing is that the border does not exist

it does not exist because the

non-justiciable political issues do not

figure in the constitutional text was

invented by judges as saying ago

already more than two centuries by the court

supreme united states are their own

judges those who delimit those who draw

the map of political issues

justiciables of the issues

non- justiciable policies and we

we find today with proposals like

what he saw in a famous program of

television that I will not send files

here with you a few days ago

before a fervent debate about

of the theme of the pickets something that

It is effectively a debate factor

Discussion concern

confrontation of opposition between

Argentines where there are very angry poses and

where the social and political temperature

it rises daily there were

character proposals with all

tranquility

they understood that to solve the

question the pickets judges and prosecutors

They had to be installed in front of each picket

and then decide how to do the

picket in question for example says

‘good to come on one side

the route does not clear it stay from

according to the rights claimed

according to the circumstances

economic and political

according to the degree of aggressiveness or

setback to the degree of pacification of

piquete they transferred the subject of the

solution of parking pickets to

judicial power as if it were a process

more to solve by the courts

Imagine if each picket

had to be served by a court

apart from the work that these courts

would have we are entering into a

thematic where the magistrates

courts or prosecutors have not been

trained to dissolve demonstrations

social or political, leaving aside the

theme of kindness or of the negative that

they can have or very negative that they can

have these concentrations

consequently already ending around

to the last question and what we do

for the future we must face the

issue recognize that the subject of the debate

the question

as I said is not treated in the

constitutional document when something does not

is treated on the coast the

National Constitution

that vacuum is filled by a procedure

which is called interpretation and

constitutional construction the

constitutional construction but it is

difficult to do in this subject

because we have very supportive sectors

of an almost total judicialization of

all political life and we have for the

contrary sectors that advise that

justice does not meddle in these

cases

clear that if the problem does not interfere

is not resolved or is solved by others

ducts he does in police armory

federal

the firemen or who knows who or

simply the chaos assume that the

problem is not solved by the

Constitution

assume that this requires a

explanation a comment

before society in the sense of

gentlemen, we have to think of some

reasonable response an answer that

Ciao will irreversibly have to

handle with the idea that the power

judicial will not be able to be the power

indifferent judicial of 60 or 50

years ago but that should not

be the judiciary curated the

judicial power that magically goes to

solve all Argentine problems

time has ended he left them with a

unknown

in a gesture of openness all 45 years to

the judiciary of the judiciary

unemployed and between camera and that’s a

that lapse

I think it may be enough to

assume that it is not a new issue anymore

has decades in action is not a

easy issue to solve

perseo is a very ideologized issue

very politically muddy and so

so much what corresponds is that with

tranquility

assumes we assume the decision that does not

will leave everyone satisfied that is

so far the court can only

judicial power and from here you can not

touches the executive to the legislature or does not

they want to find the solution of the case

thank you very much for your attention more

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