Updated 04/20/2021 10:00 PM
The ruling with which this Tuesday the federal administrative contentious judge Esteban Furnari sought to undo the precautionary measure of the Buenos Aires justice that on Sunday had suspended the closure of schools for fifteen days will not be the end point for the legal and political war between the national government and the city of Buenos Aires. While the Treasury Attorney Carlos Zannini consumes the five days that the Supreme Court of Justice gave him to oppose his arguments to the request of Horacio Rodríguez Larreta to suspend the school chapter of the DNU that added closures and restrictions, two constitutionalists consulted by Clarín rejected the sentence and Judge Furnari's reasons for closing the classrooms again.
"The judge cannot do what he did. Eventually he can declare himself competent - I think he is wrong - because of how the lawsuit is presented before the city. But even so, this claim must be opposed to that of the Buenos Aires court, and eventually resolved by the Court ", explains to Clarín the constitutionalist and teacher Alberto Garay.
"The Court always says that in order to determine jurisdiction in a conflict, how the actor raised the case must be analyzed. And the association of parents and teachers that requested the protection before the Buenos Aires justice said what Professor Néstor Sagües calls
unconstitutionality by omission
: they They sue the head of government and tell him that the Constitution of the City of Buenos Aires ensures education and other rights, and he is not doing anything to enforce them, with the excuse that the Executive's DNU prevents it. enforce the Constitution of the City, because what that decree is doing is unconstitutional and what you are doing -Horacio Rodríguez Larreta- is also unconstitutional because you are disobeying the Constitution. "
Dr. Garay considers that "thus posed, it is a typical case in which local law - city law - and federal law, expressed in the National Constitution, are at stake. It is a case that
reach the Court for Extraordinary recourse,
because it expressly fits into article 14, paragraph 2 of Law 48, which is why the last word is guaranteed to the highest judicial body. "
Can Judge Esteban Furnari then impose his criteria over what was resolved by the Contentious Administrative Chamber of Buenos Aires? "By no means; what Furnari does to suspend the sentence
is at least a very gross error
, because the Procedural Code expressly says that competition issues are processed incidentally and that
the process is not suspended,
unless they are competition issues. And in this case it is not a territorial problem but a matter: the government and Furnari say it is a federal matter. "
"Not only could no one suspend the decision of the Chamber, but
Furnari also has no competence to get into the other file
, the one that is processed in the Buenos Aires justice. He
cannot annul what the judge of the city decided
, but rather when declaring itself competent, and bidding for that competence with the Buenos Aires jurisdiction, it has to refer the conflict to the Court and invite the other court to do the same. "
Much more direct, the constitutionalist
believes that "federal justice is not hierarchically superior to the ordinary and local. I believe that Judge Furnari has incurred prevaricate with this ruling, and the City may ignore it. It is also increasingly clear that the Court cannot continue to sleep, because now there is also a conflict of jurisdiction. "