Argentina, Supreme Court of Justice of the Nation, 24 April 2020, CSJ 353/2020/CSI
Case overview
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Decision date
Deciding body (English)
Deciding body (Original)
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Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
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Further areas addressed
- Political activity / Representation
- Public Finances and Tax Policy
Outcome of the decision
General Summary
The president of the Republic declared a state of emergency due to the Covid-19 pandemic and instituted a quarantine throughout Argentina. In this context, the President issued resolution (decree) RSA-548/2020 which ordered a national lockdown. This led to a paralysis in the normal functioning of the Congress due to the impossibility of holding a session in person. Therefore, the applicant –the President of the Congress of the Republic– requested that the Supreme Court of Justice of the Nation enable the possibility of a virtual session through a remote system that would sanction the formation of a quorum. This lack of functioning of the Congress generated a situation of “extreme institutional gravity” that seriously compromised the operation of one of the three powers of the Republic. This situation also compromised the political rights of citizens and their right to representation through Congress which was unable to develop its work due to the national lockdown. The applicant requested the possibility to hold sessions through a remote or virtual system that might sanction the formation of a quorum and guarantee the debate and vote of senators. In this case, there was a clear tension between the protection of citizens’ health and the political rights of Argentinean citizens put at risk by the decision of the government to declare a national lockdown in order to deal with the pandemic and stop the spread of Covid-19 which led to a legislative paralysis due to the inactivity of Congress from the impossibility of meeting in session. The Supreme Court of Justice of the Nation rejected the declarative action of certainty because it could affect the constitutional competence of another power of the Republic. The Court determined that the Congress not only could but had to meet to fulfill its constitutional role and must do so with the modalities established by itself as it was in ordinary session.
Facts of the case
The President of the Congress filed a declarative action of certainty against the State of Argentina to clarify the state of uncertainty surrounding the legal validity of approving that the Congress meet by virtual or remote means in application of Article 30 of the Rules of Procedure of the Senate. The President of the Congress pointed out the urgent need to legislate on tax matters due to the economic consequences that the pandemic had on Argentina, since there was a strict legal reserve in the regulation of tax policy. The applicant requested that the possibility of holding sessions by a remote or virtual system might be enabled to sanction the formation of a quorum and guarantee the debate and vote of senators. The inactivity of the Congress generated an “extreme institutional gravity” that compromised the functioning of one of the three powers of the Republic. The applicant also requested that the petition must be analyzed considering the institutional gravity doctrine.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
PublicDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Supreme Court of Justice of the Nation rejected the declarative action of certainty considering the holding of remote sessions of Congress instead of the traditional “face-to-face” sessions as it was a matter within the powers of the Legislative branch regarding the implementation of the conditions for the creation of law. Moreover, such a possibility did not pose any risk of interference with the other powers of the Republic. According to the Court’s doctrine, a “justiciable case” arises when two conditions are met: on one hand, it must be a controversy that seeks determination of the right debated between adverse parties, based on a specific, direct, or immediate interest attributable to the litigant; on the other hand, the case must not be abstract in the sense that it is premature or insubstantially premature or that it would become insubstantial. In the opinion of the Supreme Court, those requirements did not exist in this case, to the extent that there was no activity (administrative, jurisdictional or otherwise) capable of calling into question a specific, direct, or immediate interest attributable to the litigant. It was not alleged -and even less sanctioned- that there was an act by the Government seeking to deny, disregard ,or restrict the power of the applicant, that is to say, an act that did not recognize the constitutional validity of the possibility of meeting in a manner that was not face to face. Indeed, it did not appear from the petition that there was any activity, or even omission, on the part of the defendant / National State, or its departments, that affected the intention of the Congress of the Nation to meet by virtual or remote means. Therefore, it followed that the grievance brought before the Court was conjectural and hypothetical. Therefore, a justiciable case did not exist which needed the authorization of the Supreme Court of Justice of the Nation. The possibility of the Congress to hold a remote session did not interfere with the manner in which the Constitution required the Congress to exercise its powers. In the opinion of the High Court, the Constitution indeed regulates certain aspects of the way in which the Legislative Power must function, but it does not indicate anything with regard to the physical or remote modality of its sessions. While it was true that the Constitution stated that “both Chambers shall meet” in ordinary sessions (Article 63 National Constitution), none of these rules prohibits holding meetings in a virtual form. Instead, the Constitution permits the Chambers to issue their own rules of procedure. As stated in Article 66 of the National Constitution, each one of them has the autonomy to regulate its own functioning and therefore to regulate the mechanisms to facilitate the performance of its legislative function in these circumstances. This meant that the Congress in its design and implementation shall not ignore the constitutional restrictions that do exist and that they comply with the requirements that the Constitution does establish.
Conclusions of the deciding body
The Supreme Court of Justice of the Nation rejected the declarative action of certainty because if the High Court authorized what was requested in the complaint, it would also have the power not to authorize other internal matters of the Congress itself, thus invading the constitutional competence of another power of the Republic. The action filed did not meet the standards of competence of the Court, because there was no judicial “case” to be resolved (there was no legal relationship, there was no controversy, there was no valid counterparty), in accordance with the provisions of Article 117 of the National Constitution and the jurisprudence of the Court. It was true that there was a case of institutional gravity, but it was not exactly that invoked in the presentation (alleged impossibility of the Senate to sanction laws that cannot be approved by the President by means of Decrees of Necessity and Urgency), but the effects on the republican system due to the alleged lack of functioning of the Congress with the subsequent impossibility of: a) sanctioning all kinds of laws, and b) exercising the control functions constitutionally assigned to it. The Congress not only could but had to meet in order to fulfill its constitutional role. It had to do so with the modalities established by the Congress itself because it was in ordinary session. That said, the Court concluded that the question whether the sessions of Congress should be held in person or remotely thus appeared to be a matter that the Constitution reserved exclusively for Congress. Under these considerations, it corresponded to the constitutional mandate of the Congress of the Nation to arbitrate the necessary mechanisms to facilitate the accomplishment of the representation of the people of the Nation in the deliberation of the matters that affected it as such.
Fundamental Right(s) involved
- Political rights
- Principle of legality
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Principle of legality, Art. 19, Constitution of Argentina
- Separation of powers, Arts. 22, 29, 76, Constitution of Argentina
- Political rights, Art. 37, Constitution of Argentina
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Balancing techniques and principles (proportionality, reasonableness, others)
The Court did not mention any balancing technique.
- Principle of separation of powers: The Supreme Court concluded that the non-functioning of the Congress directly affected one of the constitutional organs of the State (the Congress of the Nation) and inevitably affected the principle of the division of powers. However, the question whether the Congress should or should not function by using virtual means was a matter that must be resolved by Congress itself and not by the Court in application of the principle of the separation of powers.
- Institutional Gravity: The Supreme Court applied this principle to conclude that the need to discern an uncertainty regarding the constitutionality of a legislative procedure - to hold a session by remote or virtual means - as a way to prevent the prevailing health situation from completely neutralizing the performance and operation of the Congress of the Nation, constituted a situation of institutional gravity to the extent that it transcended the mere private interest of compromising the proper functioning of the constitutional institutions.
Judicial dialogue
On the type of procedure: Declarative action of certainty (art. 43 Argentinian Constitution) This is an action of unconstitutionality to control situations that could be considered contrary to the constitutional order.
