The Federal Chamber meets to discuss whether to grant leave to Judge Ariel Lijo to take office in the Supreme Court

Federal judge Ariel Lijo will present this Thursday to the president of the Federal Chamber of Buenos Aires, Mariano Llorens, the request for a one-year leave . The note will be analyzed in plenary at 11 a.m. as there are disagreements about the granting and then the process will be sent to the Supreme Court of Justice because it is an extraordinary leave. The president of the highest court, Horacio Rosatti, has the power to not grant it in the midst of the debate on whether Lijo should resign from his position.

Following the publication of the Decree signed by the President of the Nation, Javier Milei, through which he appoints Judge Ariel Lijo to be a member of the Supreme Court, the judge submitted his request for leave on Wednesday.

Judges may request two types of leave : ordinary leave, which is processed in Comodoro Py, since it is the Federal Court of Buenos Aires that has Superintendence over vacant positions. On the other hand, extraordinary leave is analyzed and resolved by the Supreme Court.

But even whether this leave is extraordinary is a matter of debate. In the Supreme Court there are those who say that it is not appropriate to grant it in the current context, that is, to request it in order to be sworn in as a minister of the Court.

The first step that Lijo took was to submit the request for leave to the Federal Chamber so that its president, Mariano Llorens, could send it to the highest court.

However, in the last few hours some members of the Court of Appeals considered that the license should not be granted. For this reason, a plenary session was called at 11 a.m. to try to unify opinions on the matter.

In any case, it is only the Supreme Court that will decide whether the license will be granted, taking into account various agreements that govern this type of request.

In the third article of the Decree that was published in the Official Gazette, it was stated that it set off alarm bells in the entourage of Judge Ariel Lijo.

"Those appointed by this act, at the time of taking the oath in accordance with the provisions of article 112 of the NATIONAL CONSTITUTION, must comply with the formalities for exercising their office," the operative section states.

According to judicial sources who spoke to Clarín, the Legal and Technical Secretariat believes that Ariel Lijo should resign from his position , something that until yesterday at the last minute had been the only option for the magistrate, the request for a license.

As Clarín had anticipated, the magistrate with more than twenty years in Comodoro Py is not considering the possibility of resigning . In the Retiro courts they maintain that he should not leave his office until November 30th, which is an alternative contemplated in the regulations.

Within the Supreme Court there are those who consider that Ariel Lijo, as a judge appointed by commission, should submit his resignation in order to be sworn in.

To support this criterion, some referred to an extensive list of antecedents that validate this line of thinking.

The central fact is the 1975 “Daffis” case, in which the Supreme Court held that when a judge accepts a commissioned position “he implicitly resigns from his previous position. The reason is that no one can be a judge with the consent of the Senate and be - at the same time - a judge appointed by decree.”

This criterion raises another concept: “Judges by decree are not stable judges.” On this point, the voices in the corridors of the Court are not unanimous.

Another example: the José Francisco Bidau case. In 1955 he took up the post of judge of the National Chamber of Appeals in Federal and Contentious Administrative Matters, in the Civil and Commercial Division. He held that position until President José María Guido appointed him judge of the Supreme Court by means of decree 9753 of September 1962.

The appointment was made on a commission basis, after the Congress had been dissolved, and expired at the end of the first parliamentary session after it, which occurred on September 30, 1964. After failing to obtain an agreement, Bidau resigned on October 1, 1964.

This last example is not insignificant: a precedent is pointed out in which a judge left his post after being appointed on commission to the CSJN, but resigned from his previous position. Since he did not obtain the Senate's approval, he was left without a position within the Judiciary.

This is the scenario that Ariel Lijo will avoid under any circumstances. He will not leave the Comodoro Py office until the corresponding agreement to take over as Ministers of the Court is guaranteed, and for the moment he is only talking about taking a leave of absence, not about submitting his resignation.

Faced with this scenario, judicial sources told Clarín that this is a discussion that will be opened "because there is no jurisprudence on the matter, we are facing a new fact."

In Comodoro Py they must overcome another decision, tied to whether the Court grants Lijo leave or not: currently, in addition to his court, number 4, the magistrate substitutes number 6 which belonged to Rodolfo Canicoba Corral.

That is to say: the Federal Court of Buenos Aires is urgently required to know the decision of the highest court because it must proceed with the coverage of the two offices that could become vacant.

The situation is not minor: one third of the Comodoro Py investigation offices are vacant, and are filled through the Subrogation Law.