In recent years, there has been a concerning advance by certain judges over the powers of the National Executive Branch, through precautionary measures against laws and emergency decrees (DNU) that, instead of applying only to the parties involved in the respective lawsuit, suspended the application of the questioned norms throughout the country and for all its inhabitants, invoking class issues and collective interests.
This is an abuse of the so-called “collective actions,” referred to but not sufficiently regulated in law 24.240 and admitted by the Supreme Court in the Halabi case with narrow limits. Class actions have been applied on numerous occasions, but sometimes, especially lately, they have been applied lightly: through them, there have been judges who have effectively assumed the power to veto DNUs and laws enacted by Congress.
These excesses, coincidentally always on politically significant issues, directly violate the role of the Judiciary and restrict the powers of the other two branches.
To resolve this, it is necessary for the Supreme Court to act swiftly to revoke these excesses and for the responsible judges to be investigated by the Council of the Judiciary.
A law to regulate collective actions
But it is also essential for Congress to enact a law that adequately and thoroughly regulates class actions or collective actions, to coordinate the proper protection of collective rights, homogeneous individual rights, and diffuse rights, with our constitutional system of separation of powers.
This compatibility is achieved by preventing or at least minimizing the partisan use of empty shells, which, under the pretext of collective interests, hinder the management of the current government.
Collective actions are admitted (and this should be the case) in any of the matters regulated by legislation, regardless of the legal relationship or the affected interest, in a process before the courts of the National Judiciary. Furthermore, it must be a public order norm, applicable throughout the country, of course, with prior adherence from the provinces.
It is easy to imagine the immense power that these processes grant to the Judiciary, which at all its levels acquires the authority to delay or directly prevent the application of norms enacted by the Legislative or Executive branches, which are democratically elected.
Such power of a counter-power like the Judiciary must be adequately, intelligently, and effectively regulated, so that no judge abuses it.
Let us clarify that federal justice is competent when the National State or its entities are parties, or when the protected legal interest, the generation of harm, or its effects encompass more than one jurisdiction, or if the affected parties reside in more than one province, or when there is another assumption of federal jurisdiction.
Who should be authorized to initiate these actions
Collective actions can be promoted by the National State, provincial and municipal entities, but private individuals can also initiate them.
To prevent the abuse of collective actions for political purposes, they should only be admitted if they are promoted by individuals who genuinely represent the interests of a class or by the Ombudsman of the Nation, the provinces, the Autonomous City of Buenos Aires, or the municipalities, as appropriate.
And if they are civil associations, they must be legally constituted and active, economically and financially viable, have a reasonable age, and a real and adequate number of members. They must also have as their express and main social purpose the defense, promotion, or protection of the collective right whose guardianship is requested and have sufficient resources to fulfill their purpose, including any potential judicial costs. These are safeguards that reduce the possibility of entities being created solely to litigate against a particular government.
As is logical, before considering the collective action initiated, the judge must verify compliance with these requirements and even the absence of conflicts of interest regarding the class.
How the representatives and lawyers of these actions should be
Always in the interest of avoiding the politicization of this type of judicial actions, it is important that in all processes a representative of the class or sector at risk or harmed is designated, who must have the competence, independence, technical capacity, and sufficient economic solvency to assume the burdens of the process and a personal, common, direct interest that is not merely instrumental with the members of the class. Furthermore, their legal situation must be typical or representative of the class they intend to defend, without generating real or potential conflicts of interest with its members.
The person of that representative is not the only important factor: it must also be required that the intervening lawyers have experience in complex or collective litigation and be independent of interests external to the class.
It should even be required, for the better protection of the harmed parties, that the relationship between the representative and their lawyers be transparent and that they do not have agreements that limit their autonomy or agreements that condition the interest of the class they defend on the economic outcome of the process.
This transparency and requirements must be maintained throughout the lawsuit, so they must be subject to review at any time during the process, ex officio or at the request of a party, if there are indications of affecting the competence, independence, or solvency of the representative or their lawyers.
The aspects that a comprehensive regulation must contemplate
Without mentioning the necessary adjustments to the Civil and Commercial Code and the Consumer Defense Law, much more must be foreseen for these actions to be well conceived.
For example, legislation must be enacted for the conversion of individual actions into collective ones, the effects of the judgment, settlements, monetary penalties, reparative funds, costs, fees, prescription, various procedural aspects, the registration of initiated class actions, the accumulation with similar processes, publicity to prevent the parallel initiation of collective processes with substantially identical objects, and above all, the real existence of a numerous legal class or subclass that can be collectively represented;
On the other hand, the leniency that has existed in granting precautionary measures makes it advisable that they can only be issued by complying with the requirements of the Procedural Code, law 26854, and also with a financial counter-guarantee, with individual scope or limited to the personal, direct, and differentiated legal relationships of the representative or of specific and named members of the group, well understood that they can never imply immobilization, seizure, blocking of funds, suspension of payments, freezing of assets, or any other restriction based on merely hypothetical collective harm.
When the existence of the class and all the preceding requirements are accredited, general precautionary measures must be justified with objectivity and analytical rigor, especially weighing the economic, social, and legal impact on third parties or on the activity of the defendant.
By complying at least with these safeguards, we will have a good class action law, which is a real protection of legitimate interests and rights, without degenerating into an extortion weapon.
