Malvinas: A lawsuit is initiated to determine the legality of a measure that revoked veteran status

The Civil Association Veterans of War TOAS 1982 - Concertación TOAS is promoting a collective lawsuit for the Justice to analyze whether the Executive Power, through Regulatory Decree 509/88, introduced restrictions that were not contemplated in the law enacted by Congress. It also calls for a signature collection on August 8 and 9.

"More than four decades after the Malvinas War, a judicial controversy related to the rights of the Veterans of War of the South Atlantic Operations Theater (TOAS) remains unresolved," they indicated in a statement.

In this regard, they stated that the objective of the action is not to determine who should be considered veterans of war, but for Justice to analyze whether the Executive Power, through Regulatory Decree 509/88, introduced restrictions that were not contemplated in the law enacted by Congress.

The discussion centers on the relationship between Law 23.109, which recognized as Veterans of War those who participated in the military actions carried out in the South Atlantic Operations Theater during the 1982 conflict, and the regulatory decree issued subsequently.

According to the association, Decree 509/88 incorporated limitations that the law had not established and that ended up restricting rights derived from legal recognition.

The claim aims, consequently, to determine whether a regulatory decree can limit rights established by a law or whether, by doing so, the Executive Power exceeded the powers granted to it by the National Constitution. In particular, the claim invokes Article 99, paragraph 2, regarding the regulatory power of the Executive Power.

During the processing of the file, the intervening judge requested a report from the State before resolving a precautionary measure requested by the plaintiff.

The State warned that a possible suspension or declaration of invalidity of Decree 509/88 could affect the public interest and have budgetary consequences, due to possible future requests for pensions from people who consider themselves covered by the law.

From Concertación TOAS, they questioned that argument. The association maintains that the report was requested solely to evaluate the precautionary measure and not to resolve the substantive issue.

However, according to the entity's claim, the magistrate used those arguments to reject in limine the action, without opening the process or analyzing the constitutionality of the questioned decree.

The resolution also took as a precedent a ruling corresponding to an individual case in which it was discussed whether a specific person met the requirements to be recognized as a veteran of war.

For the promoters of the lawsuit, that comparison is not valid because it involves processes with different objects. While that case discussed the particular situation of one person, the collective lawsuit seeks to establish whether the regulation of the Executive Power is constitutional and whether it can restrict rights that were recognized by a law.

As a consequence of the judicial decision, the central question has still not been addressed by any court: whether Decree 509/88 is compatible with the National Constitution and whether the Executive Power could establish restrictions through regulation that Congress did not include in the law.

The file reached the Supreme Court, although the highest court is still not analyzing the substance of the controversy.

For now, the discussion is strictly procedural and is related to how deadlines should be computed from electronic notifications.

According to Concertación TOAS, both the first-instance judge and the Federal Chamber used criteria from the old paper notification system to determine whether the appeal against the rejection of the lawsuit had been submitted within the corresponding deadline.

The association maintains that that interpretation does not conform to the current electronic judicial file system nor to the criteria established by the Supreme Court itself. It also points out that the different instances adopted different interpretations regarding when the procedural deadline begins to run.

Thus, before ruling on the constitutionality of Decree 509/88, the Supreme Court must determine whether the appeal was submitted in a timely manner according to the rules in force for electronic notifications.

If that procedural issue is resolved favorably for the promoters of the lawsuit, it will open the possibility that, for the first time in more than 40 years, an Argentine court will analyze the substance of the claim.

The eventual discussion could determine whether the Executive Power exceeded the limits of its regulatory power by establishing restrictions that, according to the association, were not contemplated by Congress when enacting Law 23.109.

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