Guido Croxato, specialist in constitutional law: “Lijo is more qualified than Maceda for the court”

“The problems in justice are too big. Lijo is no better or worse than other judges and it is not necessary to be a scapegoat to cover up a more important problem,” warns the director of the Latin American Institute of Criminology and Social Development. Guido Croxatto.

For this Argentinian lawyer, specialist in the field of human rights and post-graduate studies abroad in the field of public and constitutional law, professor at the University of Kiel in Germany and the lawyer of the former president of Peru, Pedro Castillothere is a judicial branch with many privileges, among which stand out the contradiction with the current process of appointing future members of the Supreme Court: the difference in the opinion of the media about the appointment of the outgoing Juan Carlos Maceda, in 2002, and the final contradictions that pressure the candidates Ariel Lijo and Manuel Garcia-Mancilla.

“We have a judicial branch with judges with many privileges. We have millionaire judges in a poor country, judges who do not declare all their assets, judges who do not pay taxes. There is a lot of nepotism in the judiciary, everyone appoints their own children, all this is wrong and would mean reforming the judiciary. (Alena) Hytan de Nolasca at that time even filed an amparo to stay in court. There are judges who are not in line with the law, it’s paradoxical,” Croxata insists as an introduction to the central issue he worries about: judicial vacancies and the process of selecting them.

– How does this reasoning relate to the case of the nomination of Ariel Liho?

– In the case of Lijo (discussion), there was an overreaction. He is neither better nor worse than other judges. If I put a magnifying glass to the justices currently on the Supreme Court, I want to focus on the Makeda case. He was appointed by (Eduardo) Dualde, who was not democratically elected. That is, he already had a deputy of political origin, appointed during the transition period, without a popular mandate. In addition, he did not meet the formal requirement of being a graduate of a national university.. Therefore, Macri is changing this requirement so that all lawyers who graduated from a private university can be judges. But this change leaves intact Article 4 of Decree 1284, which requires it The judges of the court and the attorney general are representatives of the national universities.. And “national” is understood as a state university. the requirement that Maceda does not comply. This is a technical but fundamental aspect that I want to bring to the table. I So does Garcia-Mancillais a graduate of the University of El Salvador.

– Do you think that Lijo has more “rights” than Maceda to enter the Supreme Court?

– Lijo is formally more qualified than Maceda, who did not meet the requirement to be a “national university lawyer” as required by law. Why don’t we question Maceda and Lijo who is a UBA lawyer and follows the rules?

– Because of what?

– Because in the midst of the crisis that Argentina was going through at that time, it seemed like a trifle. But over time we see that these are not small things.

– Why is it important for the Minister of Justice to graduate from a state university?

– As (Horatio) Rosati said, everything ends in judgment. This, in turn, reflects another problem, which is the increasing judicialization of political life. This is a problem for any democracy because it shows it There are other spaces in political life that do not work well.: Negotiations, agreements, consensus do not work, often Congress or political parties do not work as structures that conduct dialogue among themselves. Any conflict is then dealt with in court, and we give the last word to the judiciary.

— What problems at the political level are caused by the fact that the judiciary has the last word?

– It creates tension. In academic circles, this is known as the tension between constitutionalism and democracy. Roberto Gargarello, a prominent constitutionalist who in any other country would be a Supreme Court justice, often says that constitutional review goes to very few problems with the hands that belong to the majority or social life.

– Does it match Gargarela?

– I think Gargarela is right. I believe that Argentina has many problems with constitutional control and administration of justice. That is why it is so important that the proposed candidacies comply with the formalities established by law. Unlike when Maceda was appointed, the situation in Argentina today is more stable, and it is very good that we pay attention to who are the judges who come to court, because they must be the best lawyers in the country and Argentina does not put them.

– In any case, it is clear that the criticism of Miley for the nomination of Ariel Liho has nothing to do with his education, but rather with the objections that some sectors express against his work as a judge.

– Yes, most complaints about his work as a judge. However, I believe that the first thing to emphasize is that the candidate meets the formal requirements, and then we will analyze other issues that affect the candidate’s academic and professional career. I just want to point that out No one said that Maceda did not fulfill this formal requirement and had been a judge of the Court for more than 20 years. And nobody said anything.

– Nobody said anything because he was a good lawyer?

– He was not a great lawyer either. I think the most notable thing he did was his signature in dissent to the Lorenzetti decision in the Moigny case. (NR: On May 3, 2017, Supreme Court Justices Carlos Rosenkrantz, Elena Hytan, and Horatio Rosati decided to allow a person convicted of crimes against humanity to benefit from the application 2 for 1, established by Article 7 of Law 24390; (Congress later passed a law stating that 2-for-1 does not apply to genocide.).

– Why do you think, as you said earlier, that Lijo’s criticism is overstated?

– It seems to me that Lijo’s criticism is exaggerated for two reasons. One is because he called him Miley. Besides the fact that I disagree with Millais on many things, we are not going to criticize him without argument. There are many judges who have made controversial decisions that have not been published. Lijo is no better or worse than the other judges and meets the formal requirement of graduating from a national university.something that has to do with the defense of a public university. This is a concrete protection. Maceda is a graduate of the Catholic University of Cordoba, which is private. It is not national, not public. This has to do with the public university’s importance and values. This is not a whimsical demand. And let’s make it clear that Macedo didn’t do it, but Lijo does.

– Then what do you think about Garcia-Mancilla’s application?

– Garcia-Mancilla has the same connection to the private sector as Rosencrantz. In fact, Rosencrantz was a member of the jury for García-Mancilla’s doctoral dissertation at the Australian University. And García Mancilla comes from the University of El Salvador and the University of Australia, private universities. It cannot be that the president of the highest court of the country is from a private, not a state university. ​​​​​​Although Rosencrantz met the formal requirements, I believe that the fact that he was the president of the highest court while being the chancellor of a privileged university is a kind of contradiction or contradiction, because the Supreme Court protects the right that It is something public and for everyone. And the maximum face of justice should come from the public sector, not from the private sector. Although Rosencrantz is a graduate of a national university and meets this requirement.

— In addition to higher education, do you think that court judges should have an undisputed career?

– I come from academic life. And I believe that Supreme Court Justices and the Attorney General should be judges with impeccable professional careers, and they should also have an academic record that leads us to believe that, being judges, they will argue well, because a judge who is not has a good academic education, is not an independent judge, he is a judge who can be manipulated by interests. (Mario) Vargas Llosa once said that there are very few people who can make a living from culture. I believe this argument applies to Supreme Court justices because they cannot base their decisions on personal arguments or political interests. They must enforce the Constitution, and to do so they must have consistent and solid training. And a judge who does not have academic training, who does not have good training, is a less independent judge, more manipulative, who can be corrupted. And Supreme Court judges must be incorruptible. Argentina could choose lawyers with distinguished academic careers and who have a large consensus. It is obvious that this has not been a priority of the domestic executive for a long time.

— But you refuse to criticize Miley for these nominations.

– It is one thing to doubt a candidate, and quite another to say that the president is not authorized to propose him. I may not agree with the nomination of Liggio, but that does not mean that the President cannot appoint him and that the eligibility requirements should be analyzed as objectively as possible. Beyond our political or party preferences.

– Is judicial reform necessary in Argentina?

– Yes, and the fact that seven years ago in Argentina there was a temporary general prosecutor, who has already served three presidential terms, is much more serious than Liho’s appointment to the court. The constitutional period should last no more than seven years, but six months. In any serious republic, this should be a scandal. They don’t talk about it in Argentina. They do not talk about the fact that the general prosecutor is temporary, he has already held the position for three terms.

– Are you in favor of judges being elected by the people?

– I believe that the discussion around the national election of judges is an important discussion, behind which another problem is hidden – the public’s dissatisfaction with the judicial system. According to various polls, the worst image of the three is the judicial system. And this is due to the high disapproval of citizens of the image of the judicial system as an opaque space, with millionaire judges in a poor country, and with citizens who do not feel that the judicial system represents, helps or protects them. The lack of legitimacy of the judiciary and we have to see how to respond to this situation. And one of the alternatives is popular election of judges. I do not believe that this is the best way, I just believe that an alternative was found in Mexico or Ecuador that compensated for this lack of legitimacy of the judiciary.

— Is the judicial system in crisis?

— There is an argument that I always say at conferences, here or in Germany, and it is generally well received. What two centuries ago was a countermajoritarian objection to the judicial branch, which meant that the judicial branch had to be a conservative counterbalance to the other two branches, because the other two branches had members elected by the majority, so it was understood that the judicial branch had to balance that majority , protecting the guarantees of all, that is, the minority. I believe that the classic argument of political liberalism two centuries ago has been distorted today, and many times the judiciary protects minorities, but not threatened minorities, but privileged minorities. At the same time, the question of constitutional engineering and separation of powers arises, which is blurred and it is not the fault of the judges. But we have a constitutional and political problem that needs to be resolved within the framework of the rule of law, and for that we need a serious constitutional debate in Argentina, which unfortunately is not happening today.