In an extensive conversation with no taboos, Horacio Rosatti, the chief justice of Argentina’s Supreme Court, analyses the most sensitive issues on the judicial agenda: judicial independence, his relationship with presidents, the ruling confirming ex-president Cristina Fernández de Kirchner’s corruption conviction and a lot more.
Rosatti, 69, assures that his links with the heads of state with whom he has co-existed while serving on the Supreme Court – namely Mauricio Macri, Alberto Fernández and Javier Milei – was “practically zero.” None of them called him up “to steer a file,” he explains.
“The only thing I look at is the Constitution and the law,” he states.
In an interview published in El País in Spain, on September 19, 2023, you claimed that if dollarisation eliminates the peso, it is unconstitutional. I would like for you to share with our audience, in layman’s terms, your interpretation of that clash between the Constitution and a potential dollarisation.
A country’s currency has three functions. It’s an exchange instrument. You can pay for goods with it, it’s a reference by means of which we know the value of things. It’s a third party which helps compare the value of a pair of shoes with a kilo of apples. What identifies the value of both, what unifies them is a currency. The third factor is that a currency is a reserve value or can be a reserve value.
So, when we talk about a foreign currency other than Argentina’s, one can understand that it can be a reserve value. If the dollar has historically been a reserve value for Argentines, it’s understandably used as an instrument of payment in certain transactions as well, and that can be regulated – it’s not unconstitutional. The case of the purchase of a property, for instance. What it cannot be is an instrument to determine the value of legal tender.
That is to say, the Argentine Republic cannot issue a currency other than its national one, it cannot issue dollars, it cannot issue [Brazilian] reais. What the Argentine currency can do is to be compared, as has been the case in another stage of Argentine history, for example, parity with another currency, such as the dollar. On the understanding that one can say that the value of the Argentine peso is one in relation to the dollar, but that is not reversible.
I usually give my students an example, which is now old-fashioned: the fact that I like Julia Roberts, I’d say a few years ago and could still say it, perhaps doesn’t mean that Julia Roberts likes me. It’s not a bilateral relationship, and thus we cannot regulate the value of other currencies. And the national currency – defended by the Constitution in Section 75, Subsection 19 of the Constitution – is up to the state, it can only be one’s own currency.
So, we can’t have a single currency that is foreign, because we won’t issue it, we won’t be able to coin it and we can’t set its value, and thus we’ll be constantly checking whether that currency is devalued or not. That’s prohibited by the Constitution.
Following your example of Julia Roberts, we might say that the confusion in the parity in the 1990s was that the peso’s parity to the dollar did not entail the dollar’s parity to the peso. That is, we might aspire to our currency being convertible insofar as we have a sufficient amount of their currency, but not vice versa. We couldn’t ask for dollars to be convertible to pesos.
Correct. And deep down, the underlying thing in this asymmetry is that the value of a country’s currency cannot be divorced from that country’s real economy for very long. That’s why it can be useful, it was very useful during the one-to-one parity, to stabilise the economy but then we should have shifted towards a basket of currencies, we should have diversified because one cannot sustain the value of a currency with a parity to the currency of a country whose economy is sharply different. In that case, much larger, much more prosperous than ours.
Do you think your statement in 2023 somehow influenced the fact that, instead of closing the Central Bank, today’s President [Javier Milei] chose, rather than the dollarisation he had promised when he was a candidate, to strengthen the peso instead?
No. It would be very presumptuous of me to think that. I believe the standards of the Constitution were followed. When the Constitution states that the value of the currency must be defended, not just the currency as a nominal thing but its value, it’s saying that its value must not be depreciated, which entails that there must be a relationship between the issue of currency, the money supply and reserves. In other words, to make it more understandable, uncontrollably issuing currency without a real backup is also contrary to the Constitution because I’m increasing the supply and consequently I’m diminishing the currency’s intrinsic value.
I want to bring up your relationship with the different presidents of Argentina while you were a justice in the Court and then its Chief Justice. I’d like to start with Mauricio Macri, who nominated you [for the Supreme Court], but then in his book he stated he regretted your appointment. What was your relationship like with President Macri?
My relationship with the presidents I had to share my time in office with has been practically non-existent. That is, I had no contact with them.
I had no contact with President Macri. He nominated me, without ever interviewing me, the position was offered to me by the vice-president. And then I had no contact with him. Ever. Irrespective of social contact or seeing him every March 1, when the sessions were opened, I had no conversations.
You were never in private with him.
I was never in a private situation [with him].
Still, the fact that he regretted it in his book honours you.
It’s highly favourable for a judge, highly favourable for the president who suggested it because he’s saying: ‘I think this person was someone with sufficient qualifications and sufficient independence, so much so that then he ruled against many of my own criteria.’ I mean, I think it speaks well of him and of me, because then it’s clear I wasn’t nominated to say yes to everything.
During the government of Alberto Fernández, the [Supreme] Court as a whole was strongly questioned – there was even a long attempt at an impeachment which was unsuccessful. How did you personally experience that political period?
I knew President Fernández from before, because he’d been Cabinet chief when I was Justice minister during the first two years of Mr [Néstor] Kirchner’s presidency. I had no relationship with him during those years either.
There was the matter of the impeachment, I took that very seriously. We replied to all motions. We considered there were no grounds for it but we replied to all reports, we released the Court’s staff to serve as witnesses and undergo the Investigating Committee’s interrogation.
We took it very seriously. I have plenty of respect for the institutions in the Constitution, which includes impeachment, which wasn’t successful, because basically it was the content of rulings that people didn’t like. That did not amount to grounds and the necessary majorities were not achieved .
What’s your current relationship with [President Javier] Milei like?
I don’t know him, I’ve never seen him before, except for every March 1, which is just a handshake. I’ve never talked to him. I’ve never had a conversation with him, public or private. With his sister either.
The Court affirmed the sentencing of a former president, Cristina Fernandez de Kirchner, in the ‘Vialidad’ [Santa Cruz highways corruption] case. I’d like to know what you thought about the political reaction aroused by a Court confirming prison time.
I did meet Cristina [Fernández de] Kirchner at the 1994 constitutional reform assembly. Then I stopped frequenting her. She gave me an award when she was a senator and I was a minister. Then I never saw her again. I was left with the feeling of having fulfilled my duty.
We judges sometimes sign judgments which leave us thinking for a long time or leave us with a feeling of mortification. A sentence will never give you joy. Yes, in this case I felt I had done my duty.
I remember that day, it was very hectic, I woke up early, I knew we would deliver the ruling that day. My colleagues didn’t know it yet. I told them mid-morning, because we’d talked the content of the ruling over, I told them: “We’ll deliver it today at 5pm.” I had to sit for an exam, because I’m doing a PhD in philosophy, at 6pm. And then we reviewed the ruling with my colleagues at noon. At 5pm we met and signed it. I had time to take my test. And when I went to sleep at night, I told myself: “I’ve done my duty, nothing more.”
A ruling which left me with remorse, for instance, not because I regretted it because I did what I had to do, is the ruling where we applied the statute of limitations to a priest who had abused minors and it had all been proved, but the limitation period had lapsed. And that moral tension where one has to say, do I do what I should, what I want, what I feel, and you have to do what you should. And what we did, and the ruling was shared with my colleagues, was to say that the limitation period of that case had lapsed. And this person who had been sentenced with enough evidence and was doing time, got out.
Even today, several months have gone by, I continue to rethink that kind of situation, but I believe I acted correctly.
Another case involving a former president is being conducted right now, commonly known as the ‘Cuadernos’ [corruption notebooks] case. In Brazil, a similar case, the ‘Lava Jato’ case, was compared at some point with the trial of former commanders, the former members of the last military dictatorship, as a turning-point; in the case of Brazil in terms of corruption, in Argentina’s case in terms of democracy, which marked the whole of Latin America. What do you think about a case of the scale of the Cuadernos case, do you find the comparison with the Lava Jato case exaggerated and do you think when this case is over, it will be a milestone?
I have to be very wise because that case will surely get to the Supreme Court and I’ll have to issue an opinion on the basis of what has been proved at the time. I mean I cannot presume someone guilty or not guilty but I don’t wish to avoid the question.
We pay tribute every December 9 to the judges who tried the military juntas and that was a milestone. And it’s still visible, even though it’s recent history, 40 years later. That was definitely a milestone. Whether these sentences for graft and the recovery of assets will be a milestone, in terms of the responsibility of officials, not the stability of democracy, we’ll find out maybe in 20 or 30 years.
If they are found guilty and the assets are recovered, it will probably be a milestone which can somehow be attributed to the cases you mention.
In the Lava Jato case, judge [Sergio] Moro held that the testimony of the repentant party only gains value once it is corroborated with further evidence. In Argentina, do you believe that corroboration, geolocation, bank transfers, objective records are all sufficient, even when the repentant party’s testimony had not been filmed or recorded? How do you assess that formal fault?
That is a topic which will surely be questioned and will reach the Court and I’ll have to give an opinion on it, but I don’t want to leave the question hanging either.
I’ll answer generally, but I think it can make sense. Judges apply sound judgment criteria and that means they have to make use of the evidentiary tools they have. In some cases, some evidentiary tool is initially satisfactory and self-sufficient, and in others, it may not be so but it can be supplemented by other elements and it is a sufficiently reasonable and plausible piece of evidence, which helps determine guilt.
What is under discussion, and is much more complex, not the case here, is when evidence has been obtained without sufficient legal support, not without sufficient evidentiary value, a hidden camera.
The fruit of a poisoned tree.
The fruit of a poisoned tree. An initial deficiency can be rectified. I mean that generally, I’m not saying that for the Cuadernos case, because, I must insist…
It’s not the case.
When I have it, I’ll see, but what I mean is that it’s one thing to obtain a piece of evidence, surprising a person’s good faith, without a warrant. And it’s quite another to have a piece of evidence that cannot be initially self-sufficient but can then be corroborated by other means.
We journalists usually even publish evidence obtained irregularly, if they reveal a serious public crime. Legally, can a piece of evidence obtained illegally have any value if the fact it proves is true and socially relevant, or does the unlawful way it was obtained invalidate it completely?
The law, especially liberal criminal law, would say no. When I say this, I mean from the French Revolution onwards. Today it is under much discussion. There isn’t a single answer.
Yes, it’s clear that one thing is material, real truth, and another thing is the legal truth, which must be obtained following certain procedures. I go back to the example of the priest. The truth had been proved, legally it wasn’t enough. I mean, the facts were there, but not legally.
If a piece of evidence is obtained illegally but it works as proof to later obtain valid and independent evidence, is it right to use this new evidence to sentence someone or does the initial illegality invalidate the entire evidentiary process?
No, case law says that if there are independent, separate methods to attest to it, it is perfectly valid. The previous step gets nullified but naturally not the next step. In journalism there’s a very interesting topic which is interviewing someone at large, wanted by courts. The journalist doesn’t want to reveal the source and the context in which he obtained the information and won’t say it and the person is wanted. We have tension there, too.
I have to mention the complex composition of the Supreme Court and the difficulties to complete it. First, how do you assess that the Senate has rejected the nomination of Ariel Lijo and Manuel García-Mansilla so convincingly. That’s, unless I’m mistaken, unprecedented since 1983. What’s your institutional reading of this decision?
The institutions worked. In that process, which was long, and would have been longer for applicants, I never made a value judgment about them, about their fitness at all. I think the institutions worked.
Everybody did their duty at the time as they considered they should. I don’t have much more to say.
García-Mansilla was actually appointed justice by presidential decree, which had not happened for 41 years since the return to democracy. I ask for your opinion about the exceptional mechanism of appointment by decree. Even you, along with others, had a similar situation. Then it wasn’t necessary because they were confirmed by the Senate. What do you think about the mechanism, irrespective of the person in this case?
The case of García-Mansilla is extremely exceptional because at the time Mr García-Mansilla was sworn in, the constitutional conditions had been met for him to do so, subject to what the Senate had to say about it. Because he was replacing a man, not a woman, because the vacant spot filled by Mr García-Mansilla had opened up during Congress recess, which is when Mr [Juan Carlos] Maqueda turned 75, in late December. Because it had happened that parliamentary year, not in previous ones. Because the Executive Branch had sent the document and had incorporated it to extraordinary sessions. These conditions had never been met, except in the case of García-Mansilla. That’s why he was able to be sworn in, subject to the Senate’s opinion, which could be different three days later. This was given, I don’t remember, several weeks later.
It’s a case that could hardly … I’m not compromising the position of my colleagues in the Court, it’s my position as a constitutionalist. It’s nearly impossible to have a situation such as García-Mansilla’s because the generated vacancies were not during the parliamentary year in which someone could be appointed. That happened during previous ones. I mean, that’s already a condition not being met, which was met in the case of García-Mansilla, I must insist, because even though in the vacancy the appointment was anticipated, it was for the moment when Mr Maqueda left office.
And in the case of Ariel Lijo, they did not move forward with his appointment, if I’m not mistaken, because he did not ask for leave, of course, and in that case these circumstances were not occurring.
They were not either. But we didn’t have time to analyse whether or not they were occurring because previously, the position of justice of the Supreme Court is not one where you can ask for leave to fill it later but it’s more like practically a lifelong decision. So that requirement was missing to later analyse whether or not the requirements were met.
I must insist this is my opinion, which at the time did prevail, that’s why Mr García-Mansilla was sworn in.
Do you miss judge Juan Carlos Maqueda’s contributions?
Yes, of course. Maqueda had an institutional experience few had seen before. He was an official in all three vertical levels of Argentine federalism: municipal, provincial and national, and he was also a part of all three branches of the federal government. He was a legislator, he was in the Executive Branch, and he was in the Judiciary. So he had extensive experience, great wisdom.
He never had an appetite for positions. He was the veteran justice and every time a term ended, we would offer him to be chief justice, and he would say no. And he ended his career being the veteran justice, the most senior, but without ever being chief justice or deputy chief justice.
It is said that when the Court has three judges it delivers more rulings than with four or five. Is that correct?
Yes.
Why?
Because the Constitution does not establish the number of justices. The law does. The current law establishes it as five and decisions are by a majority. The majority among five is three.
When there are five justices in Court, a case file must rotate around all five justices. Even if we reach a third vote, the fourth and fifth must still vote because the fourth can vote differently and convince the second or the first, and so we start all over again. So it’s longer with five than with three. When all three of us agree, most times we agree. When we don’t agree, we have to call a fellow-judge.
So, the greater the number of justices in the Court, the longer the process to achieve a consensus. And naturally a majority is not achieved with three. If there are seven, a majority is achieved with four. If there are nine, a majority is achieved with five, so the process is longer for us to agree. Consequently, in this Court, where there are three of us and three is a majority, once all three of us agree, the ruling comes out. And that happens most of the time.
You said that since the resignation of Elena Highton de Nolasco, the Supreme Court has no female representatives, what are your thoughts about the absence of women in the Court, do you find it essential for one of the justices to be a woman?
There’s a constitutional issue that still needs solving. I have my opinion on the matter, of course, but the truth is that in this case anything I say will be interpreted as prejudice.
There are constant arguments about expanding the number of justices. In your own experience, what is the ideal number or what do you think the best number would be?
I’ll give my opinion, which does not compromise my colleagues or should not be construed as pressure on anyone. To me the best number, historically, is five. That being said, that is Horacio Rosatti’s opinion. It’s the power of Congress to determine that number. If they consider it should be a different number… Why do I say five? I want to explain my answer. Because sometimes they say, there’s a criminal judge missing, there’s an administrative judge missing, there’s a labour law judge missing. To be a Supreme Court justice, you have to know about constitutional law, that is the most important thing.
At the annual magistrates’ dinner, you talked about the different systems to elect judges and you mentioned there are three, the one where the President decided, the one in Argentina, with its entire process at the Magistrates’ Council, or for judges to be elected by popular vote, as is the case in some tiers in the United States and generally in Mexico recently. What’s your opinion about judges being elected by popular vote?
I’ll give you an answer, if you don’t find it satisfactory, you can cross-examine. The Constitution establishes a mechanism, whoever wants judges to be elected directly by the people has to reform the Constitution, it requires a constitutional reform. And it can’t happen like, the chief justice or some other president, among the people they think is a lawyer and is of a certain age, I’ll send the documents…
No, it has to go through public tender, there has to be a shortlist. That is, the Magistrates’ Council conducting this task is there under the Constitution. We would have to repeal the part of the Constitution establishing the Magistrates’ Council.
I’m asking the academic in you. I understand it’s not possible, but you were in the constitutional reform assembly, in a potential new assembly, do you think it would be positive or negative for judges to be elected by popular vote or a given level of jurisdiction?
I was in the assembly and that is what I voted for, convinced that it is the best system.
You’re chief justice of the Supreme Court and preside over the Magistrates’ Council, does this double role cause any tension?
No. It is very intense, because I used to lead a different life. And so in my other life, the political one, links, listening to strong criticism, seeking consensus, I didn’t find it strange, but they’re two very different worlds. It’s as if you were going into a ‘Sweet 16’ party and then go to Mass. That is, one place has boisterousness, heated debates.
Now, this Magistrates’ Council, I don’t wish to exaggerate but 95 percent of its decisions have been made unanimously. After plenty of arguing, because we have legislators, judges, scientists, academics and lawyers there practising their own profession and there are also divisions because judges have different tickets they represent, deputies and senators, a majority and a minority. So that debate is very rich indeed.
In the Supreme Court it’s different. We’re four or five. We lock ourselves in, make our own decision based on the facts. And the decision is sometimes surprising, unexpected. That has always been considered positive, things aren’t leaked. Because you work at ease, not like in the other case.
The other case is televised, there have been scandals but I must insist, heated debates, but after decisions, and 95 percent were unanimous.
Meaning, your view is positive in terms of the existence of the Council.
Yes, very positive.
The Supreme Court ratified several important sentences of drug dealers, organised crime, you’ve already said you were never pressured by politics, what other kinds of insecurities have you had in your life? I understand you’ve been hacked a lot.
Many. All of them.
Any one you can share for our readers to understand…
I can mention the ones I reported which went through the courts, where people have been sentenced, prosecuted and there are ongoing investigations.
All types of espionage, monitoring of my mobile phone, my laptop, phone recording, they have cloned my phone, got phone lines in my name, they’ve tried to burgle the place where I keep my records. That’s all happened to me. I must be the most spied-on official in the Argentine Republic today, there’s no doubt about it. I turn on my computer and it’s like a Christmas tree, lights blinking, strange things happening, pendrives being emptied. That happens all the time.
Now, to say that I feel pressured as a result, I don’t, not at all. I’ve experienced more serious situations. That’s not pressure to me. I think pressure is subjective. The incentive can be there. It depends on every person’s weakness, or temper, to consider it pressure.
They can hack me, scan my personal behaviour, my fiscal behaviour, which is wrong, because if they do that to the chief justice of the Supreme Court, what’s left to the rest of the community. Now, even if it’s wrong, they can do it anytime they want. They’ll find absolutely nothing, no material that could lead to extortion. They’ll find literature, stuff on Boca Juniors, but nothing else.
You have acknowledged your Peronist origins on different occasions. Do you still consider yourself a Peronist? What’s your opinion of Peronism?
When you enter the Judiciary you have to leave your political affiliation at the door, and that’s what I did, quite literally. After that, your perspective is the perspective of the Constitutions. So as for political banners, I think that became clear with my personal behaviour.
The Constitution does have elements you can identify with more or less, but that is what you have to apply. Ideology, doctrine, I leave that to the people’s representatives, Congress and presidents.
You mentioned you have to sit for an exam for a PhD in philosophy after a PhD in history, and obviously a PhD in law. What pushes you to continue studying at your age, always within social sciences?
What I enjoy most in life, besides affections, family, friendship, anything, is to study. It’s what I’ve done my whole life, study and study some more. I will die studying while my intellectual capacity holds up. To study, to know, to talk about knowledge is what I enjoy most, even writing when I feel I have something to say.
Thirty times, 30 books.
Yes…
One per year.
Yes, more or less. I don’t regret any of them. Some I like more than others, I wrote them with more enthusiasm than others, but yes.
For example, the Perfil ombudsman told me to ask you specifically about a book you wrote about Frankenstein, and now that a film by Guillermo del Toro has just premiered, given your specialisation in Frankenstein, what you thought of the movie.
I thought it was good, not very good, but I thought it was good, because it’s quite classic. The core topic of Frankenstein, to me, is the topic of aesthetic prejudice, which becomes an ethical prejudice. That is why, and these topics are dealt with in the film, they are dealt with in Mary Shelley’s novel but they are dealt with in the film.
Who can relate well with Frankenstein, without rejecting him? A child with a virginal outlook and the blind. And these two situations happen in the novel and in the film. The adult with a polluted outlook, the aesthetic becomes ethical, so the ugly is bad and the beautiful is good, that’s the part I’m interested in about Frankenstein.
I’ve seen lots of versions to write the book. When they concentrate, I find the substantive topic is discrimination. The other one is the creation of life. That is, if that can be done by human beings, which is already a debate which perhaps today, or in 10 years, a lot of things can be created, but the topic of prejudice continues. It’s a movie that deals with this theme in quite a dignified way, that’s why I thought it was good.
But I think we can get to the point and hence your PhD in philosophy, to the Greeks the true was good and beautiful, so maybe we can reverse the order that the beautiful is good, not the good is beautiful. And we can reverse the order that the bad is not because it’s ugly, but that it’s ugly because it’s bad.
When you propose the ethical consideration above all others, I feel comfortable. That is, everything else, Peronist, Radical, ugly, beautiful, fat, thin, is circumstantial. Not the moral. Hence the PhD in philosophy.
Production: Sol Bacigalupo.
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