FASE 1: SELECCIÓN Y AGRUPACIÓN INTERREGIONAL PRELIMINAR

committed in the exercise of their functions; or for common crimes’.²⁷⁹ There are three questions that arise from this provision: How can the JC or the IJ determine if a crime has been committed?

What constitutes ‘malperformance’? and what is meant by ‘in the exercise of their functions’?

Looking at these in turn, the fact that the grounds for impeachment include ‘crimes’ appears to be in contradiction of the recognition, described above, that only the criminal courts can judge crimes. This apparent contradiction is present in the Constitution of the USA and was inherited by the Argentinean Constitution.²⁸⁰ As Argentinean Supreme Court Justice Zaffaroni explains, this constitutional provision can only be interpreted to mean the ‘presumption of crimes, and not crimes in the strict sense’.²⁸¹ Zaffaroni explains that if there were the need to wait until the criminal courts decide on the commission of a crime before proceeding with impeachment proceedings, ‘impeachment would never be viable’.²⁸²

Zaffaroni however also points out that there may be a contradiction where an official is impeached for the presumption of a crime, if criminal courts subsequently rule that there was no crime committed. He concludes that strictly speaking, ‘the only ground which can give way to a removal is malperformance’, which in itself then may or may not give way to the presumption that a crime was committed.²⁸³ This is, he argues, the only way to ensure to separation of powers that entrusts judging crimes to the courts: ‘malperformance does not need to build upon the substantiation of a crime, even where its presumption arises as a result of it’.²⁸⁴

The Argentineans copied the catch-all phrase ‘malperformance’ from the Colombians, who use it as the only grounds for removal.²⁸⁵ What can be deemed to be ‘malperformance’ therefore, is

278 After some consideration, I have translated the term mal desempeño as ‘malperformance’. I have chosen this term both as it is the literal translation, and to avoid confusion with other legal concepts such as ‘misconduct’

which may be understood differently in different jurisdictions.

279 The term ‘common crimes’ refers to crimes regulated by the Criminal Code, as oppose to those set out in other laws. See J Martínez, 'Delito Común' (Enciclopedia Jurídica Argentina 2017)

<https://argentina.leyderecho.org/delito-comun/> accessed 4 March 2019.

280 Zaffaroni and Risso (n 257) 722.

281 Zaffaroni and Risso (n 257257) 723.

282 ibid.

283 ibid.

284 ibid.

285 Zaffaroni and Risso (n 257) 722.

Page 87 of 366 extremely important. Article 25 of Law 24,937 provides a non-exhaustive list of what may constitute malperformance:

inexcusable lack of knowledge of the law; repeated unfulfilment of the Constitution, legal or regulatory norms; gross negligence in the exercise of his functions; carrying out acts of manifest arbitrariness in the exercise of his functions; grave disorders in personal conduct;

the abandon of his functions; the repeated application of disciplinary sanctions; and supervening physical or psychological inability to exercise his functions.²⁸⁶

This clearly leaves those in charge of removals processes with a degree of discretion in determining what constitutes ‘malperformance’. Indeed, the term has been recognised as a

‘”indeterminate legal concept” that needs to be specified case by case’,²⁸⁷ thereby purposely leaving a margin of discretion in its interpretation, which is in line with the political nature of the decision to remove a judge.

The concept of ‘malperformance’ has therefore been defined only in an abstract way in the literature, as it would be impossible to attempt to list all circumstances that would fall within its ambit. Interestingly is has been characterised as being the counterpoint to the ‘good conduct’

provision contained in the constitution.²⁸⁸ The requirement contained in Article 16 of the national constitutions that public sector officials should be fit for their role,²⁸⁹ has also been considered relevant in interpreting the term ‘malperformance’.²⁹⁰ ‘In essence’, summarises Linares Quintana, malperformance ‘comprises exercise of a public function in a manner that is contrary to the public interest and benefit, on the fringes of reason, prudence, discernment and good judgement’.²⁹¹ Bielsa agrees that malperformance ‘incorporates a lack of fitness [for office] that is not only professional or technical, but also moral, such as ineptitude, moral insolvency, all of which constitute damage to the function, that is the management of the general interest of the

286 Law 24,937, Consejo de la Magistratura: Creación y Funcionamiento (BO del 06/01/1998); Translation my own.

287 Jurado de Enjuiciamiento de Magistrados, Causa No 1/2009, SCD s/Denuncia, Magistrada Rosa Elsa Parrilli OJ 8 (BOCBA del 14/01/2010) 11.

288 ibid.

289 The Spanish term used here is ‘idoneidad’ which can be translated as aptitude, suitability, or fitness for.

290 Jurado de Enjuiciamiento de Magistrados, Causa No 1/2009, SCD s/Denuncia, Magistrada Rosa Elsa Parrilli OJ 8 (BOCBA del 14/01/2010) 11.

291 Segundo V Linares Quintana, Tratado de la Ciencia del Derecho Constitucional, vol 9 (Plus Ultra 1987) 456.

Page 88 of 366 nation. The public function, its efficiency, its reputation, its integral authority is essential’.²⁹² This, however, does not translate into a toleration of a lack of due process or that arbitrariness is acceptable: ‘the discretion can apply to the evaluation of the conduct, but not in the facts that are alleged, because these need to be proved in order for the grounds for removal to be given.’²⁹³

The grounds for removal refer to the conduct of a judge ‘in the exercise of their functions’. This implies that a judge cannot be removed for conduct in their personal life that does not affect the exercise of their functions, unless is falls under the category of ‘grave disorders of personal conduct’, although this leaves room for doubt as to what conduct can come under review. What is clear, however, and as shall be discussed further in Section 3.3.2, is that ‘in the exercise of their functions’ should not be interpreted to mean that judgement can be passed on the content of a judicial ruling. That power to review judgements lays exclusively with the courts.

At the ACBA level, the provisions are largely the same as at the Federal level, with the main difference being that some of the grounds for removal contained in laws at the Federal level are included in the constitution at the ACBA level. Article 122 of the ACBA Constitution therefore lists the grounds for removal as: ‘commission of wilful criminal acts, malperformance, gross negligence, slowness in the exercise of his functions, inexcusable lack of knowledge of the law, and physical or psychological disability’.²⁹⁴ Whilst this provision also includes the catch-all phrase

‘malperformance’, it specifically list gross negligence and physical or psychological disability as separate grounds for removal whereas at the Federal level those grounds were listed as examples of malperformance in the legislation cited above. ‘Slowness in the exercise of his functions’ and

‘inexcusable lack of knowledge of the law’ are grounds that are not specifically listed at the Federal level, however may fall under the Federal category of ‘abandon of functions’, or may otherwise be deemed to constitute malperformance.

Whilst the greater specificity of the ACBA constitutional provision therefore appears to provide more certainty as to the grounds for removal, the provisions are open to the same degree of

292 Rafael Bielsa, Derecho Constitucional (3rd edn, Roque Depalma 1959) 599-600.

293 María Angélica Gelli, Constitución de la Nación Argentina Comentada y Concordada (La Ley 2005) 559. See also Néstor P Sagüés, Revisión Judicial de las Sentencias Destitutorias Dictadas en el Juicio Político (La Ley 2006) 3.

294 Translation my own.

Page 89 of 366 discretion, in particular in relation to what constitutes ‘malperformance’. In this regard, it should be noted that as the ACBA Constitution took this terminology from the national constitution, removals proceedings at the ACBA level have looked at the interpretation of this term at the Federal level and even in other provinces when using it as grounds for removal.²⁹⁵

The structure of the provisions on the removal of judges in Tucuman more closely mirrors the Federal laws. Article 112 of the Provincial Constitution of Tucuman states that judges shall remain in their posts ‘whilst their good conduct lasts’. Judges can be removed for the reasons set out in article 47 of the Provincial Constitution: ‘crimes committed in carrying out official functions, common crimes, and a failure to carry out official duties’.²⁹⁶ Article 4 of Law 8,199 that sets out the process for removing a judge, provides a non-exhaustive list of what is understood to be ‘a failure to carry out official duties’, another catch-all phrase resembling ‘malperformance’ at the Federal level:

Where [the judge]:

1. Demonstrates inexcusable ignorance or negligence in the exercise of his functions;

2. Fails to carry out the duties inherent to the post in an unjustified manner;

3. Delays his rulings with respect to the issues submitted for his decision or opinion in an unjustified manner, without the quantity of work providing an excuse;

4. Manifest acts of partiality;

5. Repetition of irregularities in proceedings;

6. Active or concealed activities of party politics;

7. A lack of independence manifested in the observance of influences detrimental to the dignity and authority of the functions of his post;

8. Acquisition of obligations with litigants or professionals connected to him by virtue of the exercise of his functions;

9. Personally exercises trade or a business.

Law 8,199 then goes on in its Article 5 to specify that judges can be removed for either not fulfilling the conditions that the Constitution or laws establish for the exercise of his post, or supervening physical or psychological inability.

295 Jurado de Enjuiciamiento de Magistrados, Causa No 1/2009, SCD s/Denuncia, Magistrada Rosa Elsa Parrilli OJ 8 (BOCBA del 14/01/2010) 11-14.

296 Translation my own.

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