Buenos Aires Herald: Gov’t reignites the debate over Civil Code

Algunas impresiones que dimos junto a Gustavo Arballo y Nelly Minyersky sobre el Código Civil y su situación en el marco del conflicto entre Poder Ejecutivo y Corte- En el Buenos Aires Herald, acá.

bailar con la legislación más fea - Saint Telm 2011

By Federico Poore y Luciana Bertoia

Justices think the discussion is stuck due to political decisions, experts are sceptical The sanctioning of a new Civil and Commercial Code has been long delayed ever since a draft bill was presented in March 2012 — the main reason being the ongoing quarrel between the national government led by President Cristina Fernández de Kirchner and the Supreme Court headed by Chief Justice Ricardo Lorenzetti. “The discussion is stuck because of political issues, not judiciary ones,” lawyer Nelly Minyersky, who took part in the drafting of the new bill, told the Herald. Supreme Court sources agreed with her description. However they welcomed the meeting held between Justice Minister Julio Alak and Chief Justice Lorenzetti two weeks ago. Apparently both officials met to relaunch the discussion in Congress of the new Code bill. For months, there has been no dialogue between the Kirchnerite administration and the top court. In May, the government hurried a package to reform the Judiciary but on June 18 the Supreme Court declared unconstitutional the most important part of the reform sponsored by the government: the direct election of the members of the Magistrates Council, the body in charge of the selection of judges.

A possible new Code? 

On Monday, Alak arrived at the Lower House of Congress to meet with several lawmakers in order to expedite the discussion of the new Code. Fernández de Kirchner ordered her congressional spades to pass the new Code before December 10, when the new lawmakers will be sitting on their benches after October midterms. “The government does not want to delay any more the discussion nor do they want to debate the issue with a renewed Congress,” sources from the highest tribunal said. 

On Februrary, 2011, the president ordered the creation of a commission in charge of proposing a reform to the Civil and Commercial codes and appointed Lorenzetti as its chairman. He was joined by Deputy-Chief Justice Elena Highton de Nolasco and former Mendoza Supreme Court Justice Aída Kemelmajer. In a year, they finished their work. Some of the articles referred to families in a multicultural context, regulating same-sex marriage, simplifying the process to adopt a child as well as assisted reproduction techniques. The bill also contemplates the communal ownership of the land for indigenous communities.

“The new Code is focused on the everyday problems people face and it also has a clear and understandable language,” Lorenzetti said on March, 2012 when he handed the proposal to the president in times when the heads of the Executive and the Judiciary were not in the middle of a confrontation. Although Fernández de Kirchner said the Code was going to be discussed last year, nothing happened but this year’s legislative elections speed up the stages. Some say that time passed in order to vanish Lorenzetti’s authorship and in the Court they do not dismiss that explanation. The appointment of Jorge Bergoglio as Pope Francis might have well worked as a deterrent to avoid discussing certain issues. It was said that the ruling Victory Front (fpV) was planning to introduce some changes in the bill. If that happens — court sources said — the Commission in charge of drafting the bill will have to analyze them in order to verify if the bill shows coherence as a whole.

What will happen?

Even though the government seems to be willing to pass the new Civil and Commercial Code doubts still remain. 

As some experts point out, the Kirchnerite administration might be well thinking of sponsoring this discussion in Congress as evidence of their long-term view. “They are trying to incorporate modifications to show this as the Code made by people in the Congress and to put those who wrote the bill in a second level,” lawyer Gustavo Arballo told the Herald and he added: “However, if the Code is passed, the main winner should be Lorenzetti but it is also possible that it could be seen as a win-win for both parties.” 

Constitutional law expert Lucas Arrimada was also sceptical about the viability of the bill. “If they sign a peace agreement between the Court and the Executive, and taking into account the Media Law and some other issues that the tribunal is examining, I think that the Code has a limited viability dependent on specific and non-traumatic reforms,” he told the Herald. 

“A critical analysis of the reform proposals, without the background of institutional confrontation, is still pending,” Arrimada added. 

Arballo and Minyersky also shared his concern. “We have a long story of similar projects that were finally discarded. I hope this one doesn’t end up the same way,” Minyersky acknowledged. 

@fedebillie / @LucianaBertoia