SUMARIO.- El intendente de la ciudad de La Rioja interpuso una acción de amparo a fin de que se declare la inconstitucionalidad del incumplimiento de su provincia de dictar el régimen de coparticipación municipal previsto en los artículos 168 y 173 de la Constitución local y en el artículo 9 inc. G, de la ley 23.548 de Coparticipación Federal, de conformidad con los artículos 5 y 123 de la Constitución Nacional.
El Tribunal Superior de Justicia de la provincia rechazó in limine el amparo, lo que motivó el recurso extraordinario y, ante su denegación, la queja.
En primer lugar la Corte se pronunció sobre la admisibilidad del recurso en tanto la decisión del Tribunal Superior de Justicia provincial, al rechazar in limine el amparo, ha sostenido el carácter no justiciable de la cuestión planteada sin considerar los argumentos de derecho federal invocados por la parte.
La Constitución Nacional establece en el artículo 123 un marco para la realización de un sistema federal que incluye un nivel de gobierno municipal autónomo cuyo alcance y contenido en orden institucional, político, administrativo, económico y financiero debe ser reglado por cada constitución provincial.
No puede haber municipio autónomo verdadero si no le reconocemos explícitamente entidad política o le retacemos la capacidad de organizar su administración y realizar los actos administrativos necesarios para el cumplimiento de sus funciones o lo privamos del sustento económico-financiero indispensable para que preste aquellos públicos que la provincia le asigne, inherentes a su existencia (cita de la Convención Constituyente Nacional, sesión del 8 de agosto de 1994).
La autonomía municipal se enlaza con los recursos financieros para ejercerla.
En el caso de la Constitución de La Rioja, se establece en dos artículos –el 168 y 173- las características del modelo de coparticipación municipal que impera en la provincia, normas que han sido incumplidas por los poderes constituidos de la misma. La omisión del dictado de la ley que coparticipa fondos ente los municipios lesiona el diseño mismo establecido por el constituyente, y por esa vía la provincia transpone los límites de lo racional y razonable para la vigencia efectiva de la autonomía municipal.
El dictado de la ley, tampoco puede estar condicionado a la concreción de acuerdos políticos entre provincia y municipios que en 16 años no han sido logrados.
La Corte concluyó que la respuesta meramente dogmática de la máxima instancia jurisdiccional provincial carece de todo desarrollo argumentativo racional respecto a las cuestiones constitucionales reseñadas, y por ello no satisface la garantía constitucional de fundamentación de las sentencias judiciales.
Por ello, se hace lugar a la queja, se declara procedente el recurso extraordinario y se deja sin efecto la sentencia apelada. Asimismo se ordenó que vuelvan los autos al tribunal de origen a sus efectos.
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