Friday, 25 December 2015



In both cases the newly elected conservative rulers aimed at the constitutional/supreme courts.

In ARGENTINE'S case new hardliner conservative President MAURICIO MACRI,   appointed two Supreme Court Judges by decree. Observers point out that the impartiality of the two appointed Supreme Court judges will hardly be given under these circumstances and seriously undermine democratic values.

In POLAND’S case the government carries through on threat to constitutional court by pushing through widely condemned reforms that water down judges’ power to rule on legality of government policies, thus hampering judges on rulings and passing through laws. 

As a consequence thousands of people demonstrated in Warsaw and 20 other Polish cities against the country's new hard line conservative government for the second weekend in a row.


The ruling Law and Justice party came to power in October and has since installed five of its own judges in the country's 15-member Constitutional Court. A mirror image of what is occurring in Argentina.

They refuse to recognize the judges appointed while the previous liberal Civic Platform party (PO) was in power.
The ruling party is also debating a law that would require a two-thirds majority by the 15-judge tribunal for a ruling to be found valid.


Via The Guardian 

Poland's government carries through on threat to constitutional court
Hard line conservatives use numbers to push through widely condemned reforms that water down judges’ power to rule on legality of government policies

Poland’s ruling conservative party has passed a law that top legal and opposition figures say will paralyze the country’s highest legislative court and remove important checks on the government’s power.

Following an avalanche of criticism at home and abroad, the approval of the new law raises the bar for constitutional court rulings from a simple majority to a two-thirds majority, while requiring 13 judges to be present instead of nine previously for the most contentious cases.

The Law and Justice party (PiS), led by staunch conservative ex-premier Jarosław Kaczyński, has already plunged the country into a political crisis since being elected in October, partly over controversial nominations to the constitutional court.

It has attempted to install five judges of its own choosing in the 15-member court, and refuses to recognize judges who were appointed by the previous parliament when the liberal Civic Platform (PO) party was in power.
With PiS in control of both houses of parliament, the law passed easily, with 235 votes for and 181 against. Four lawmakers abstained.

Thousands of people demonstrated in Poland’s capital, Warsaw, and other cities ahead of the vote, accusing the conservative government of undermining democracy.
The European parliament chief, Martin Schulz, has compared the political situation in Poland to a “coup”. Poland’s prime minister, Beata Szydło, demanded an apology.
Poland’s supreme court has said the new law interferes with the court’s independence and aims to hinder its proper functioning.

The law introduces obligatory waits of three to six months between the time a request for a ruling is made and a verdict, compared with two weeks currently.
This “presages huge potential delays and, in fact, the paralysis (of the court)”, the supreme court said in a written opinion.

The PiS’s Kaczyński – who is neither president nor prime minister but is widely thought to pull the strings in his party – has said he wants to break up the “band of cronies” who he claims make up the court.
He has accused it of trying to block government policies, including on family benefits and the retirement age.


Via Argentine Independent

The procedure for appointing Supreme Court judges demands that the executive publishes the names of the candidates, then giving 15 days for organisations, academics, and other members of civil society to support or challenge them. After this period, the president may submit the candidacies to the Senate, which must approve them before they can take office.

However, as Congress is currently in recess and President Macri did not call for extraordinary sessions, he appealed to a constitutional clause which states that the President “may fill up employment vacancies, which require an agreement by the Senate, and which may come up during its recess, through appointments in commission which will expire at the end of the following legislature.” If the Senate does not reject or agree to the appointments next year, the new judges will remain in their posts until 30th November 2016. The decree which appoints the judges also calls for the Justice Ministry to “immediately implement the procedure” by which they will be eventually ratified or rejected by the Senate.

Carlos Rosenkrantz is a lawyer from UBA and holds a LLM and JSD from Yale University. He has served as professor in various universities in Argentina and overseas and is currently the dean of the Universidad de San Andrés. He specialises in constitutional litigation and complex cases. He is a partner in the firm Bouzat, Rosenkrantz & Asociados, which represented Grupo Clarín in the media law case.

Horacio Rosatti is a lawyer and notary public from the Universidad del Litoral. He also has an extensive academic career and was mayor of the city of Santa Fe between 1995 and 1999, and Justice Minister under Néstor Kirchner’s government between 2004 and 2005.

Justice Minister Germán Garavano justified the appointment, saying that the Constitution “is very clear” in stating that this procedure may be used when Congress is in recess, and adding that “they are two completely independent judges (…), despite being ‘in commission’ they will not do whatever the Government asks.”

However, the government was widely criticised for exercising a mechanism that has never been implemented in democratic times to appoint Supreme Court judges. Radical politician and former judge, Ricardo Gil Lavedra, said that “the constitutional norm that was used is indefensible before the reach of the principle of judicial independence.” Though he recognised being friends with one of the new judges, he added that they “are not independent” because they will be “Macri’s judges, they depend on him for their appointment as well as for their removal.”

Legislator and former presidential candidate Margarita Stolbizer called the appointment “a scandal, a huge setback.”

Former Supreme Court judges Fayt and Zaffaroni resigned on 10th December 2015 and 31st December 2014 respectively. The previous administration proposed replacements for both judges, but the then-opposition made a pact refusing to approve any candidate presented by ex-President Cristina Fernández.

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