Friday, December 1, 2023

OP-ED | 15-05-2021 11:28

Problems in perspective

President Alberto Fernández has sought a back door but he flouts one of the most elementary principles of jurisprudence – an ordinary law cannot override the Constitution.

Constant grandstanding and sterile confrontation might be entirely typical of an election year but also need to be placed into perspective – not only is the extremist rhetoric out of all proportion to the meagre legislative shifts likely to emerge from this year’s midterms (if indeed or perhaps rather when they are held) but Argentina also needs to look at the rest of the world, where the hostilities raging in the Gaza Strip or the violent protests ravaging Colombia for over a fortnight now with dozens of dead make our problems look trifling in comparison. Nevertheless, these problems are genuine enough and nor should they be denied. These include the everyday problem of relentless inflation, of which we were recently served a reminder with Thursday’s announcement of the April figure, stubbornly remaining above a monthly four percent despite hopes of a bigger improvement from March. But the biggest problem, as always, remains the coronavirus pandemic with the Covid-19 virus snuffing out at least 10 times more lives here each day than all of Colombia’s turmoil as the death toll approximates 70,000.

Yet as if the pandemic were not enough, the latest solution in the form of the superpowers bill sent to Congress last Monday seems only to add to the problems. Frustrated by the Supreme Court ruling early this month against his emergency decree suspending classroom education throughout the Buenos Aires metropolitan area (AMBA, in its Spanish acronym) among other restrictions, President Alberto Fernández has sought this back door but he thus flouts one of the most elementary principles of jurisprudence – an ordinary law cannot override the Constitution. It would take more than a first-year law student to define how emergency legislation can be enacted when needed while remaining within the constitutional parameters of a federal republic but even a pandemic cannot enshrine the principle of an elected dictatorship trampling over other elected governments at lower levels.

Unfortunately, the legal fine-tuning this would require seems to have been replaced by political bulldozing with nobody much interested in subtleties. Perhaps comparisons with Germany’s Enabling Act of 1933 are exaggerated since this bill seeks superpowers for the rest of this year but the government evidently thinks that scrambling together the necessary parliamentary majorities suffices to ignore the Supreme Court and the Constitution. The opposition seems to think that it is performing its duty in stonewalIing these dubious moves without giving sufficient heed to the fact that a lethal pandemic is in progress with winter approaching. If the government’s restrictions are considered unacceptable, constructive alternatives must be offered.

Yet if the highway does not work out for the government, there is no guarantee that the byway will either. Political pundits like to say that Greater Buenos Aires holds the key to political power in Argentina but its deputies number only around 50 among the 257 lower house seats. Most of the rest come from inland provinces and those not disciplined by the Frente de Todos whip are unlikely to look kindly on superpowers overriding any local autonomy. It should not be forgotten that the original name of this country was not Argentina but the United Provinces of the River Plate so that the provinces constitutionally predate the national government. And even if this bill could muster the necessary parliamentary majorities, it would face the virtual certainty of rejection by the courts, thus forcing the government into directly unconstitutional behaviour. 

Even limiting these superpowers to a year is not free from objection. Things look bad now and will continue to do so for some weeks and even months but who says that this plague is going to last forever or even the rest of the year? Much of the world such as Israel, the United States and parts of Europe is already leaving the pandemic behind (not to mention its Chinese birthplace) even if the exit is precarious in places so that this bill could bestow emergency powers persisting into a relatively normal situation, thus gratuitously sanctioning all kinds of abuse.

To say that the cure is worse than the disease may be unwarranted when speaking of a pandemic claiming millions of lives worldwide, but at the very least this superpowers bill can be said to be as much of a problem as a solution.     ​


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