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Friday, December 2, 2016
- In search of a more transparent and agile justice system that is less authoritarian and bureaucratic, judges, prosecutors, defence lawyers and legal experts in Argentina are pressing for reforms to modernise the judicial branch and make it more democratic.
A coalition of members of the judicial branch, the attorney general’s office and NGOs, named Justicia Legítima (Legitimate Justice), held a series of debates on Feb. 27-28 which gave rise to proposals for modernisation that will be published in a forthcoming document.
“This is a debt owed to democracy. We have a mediaeval judicial branch that needs to be changed,” academic Andrés Harfuch, coordinator of the programme for trial by jury and citizen participation at the Institute for Comparative Studies in Criminal and Social Sciences (INECIP), told IPS.
Harfuch, a member of the Justicia Legítima coalition, said the Argentine judicial branch is “hierarchical, pyramidal and authoritarian; it only allows professional judges, although the constitution stipulates that juries must be a part of the system, something that would introduce major changes in the entire structure.”
The system still operates by written arguments, and lacks transparency, Harfuch said. “It’s a Precambrian system, which hardly any advanced country uses any more. In some courts they still use typewriters and court employees spend their time stitching records together,” he complained.
In the last 25 years, INECIP experts have worked on judicial reform in nearly every Latin American country, “from Mexico on down,” Harfuch said. But “the hard core of resistance is still Argentina’s federal justice system,” he said. “The judges cling to their privileges and power.”
The internal debate acquired public notoriety in December, when three groups of judges and officials expressed their concern over “the use of pressure mechanisms against judges” by the executive branch, “affecting their independence.”
Hundreds of judges, prosecutors, public defenders, justice employees and academics replied in another publication, titled “Una justicia legítima” (Legitimate justice), questioning the criticism voiced by the judges in December and giving birth to the new coalition.
The signatories said they did not feel represented by the complaints of the three associations. They said they were trying to reconcile the justice system with the citizenry, and that independence should not only be understood in relation to other branches of state, but also to the business community and the media.
The background to the dispute is the clash between the government and the Clarín media group which is being settled in the courts. The company is in breach of the law against concentration of the media which forces it to shed some of its radio and television licences, a measure that has been postponed by court injunctions since 2010.
The government recused two judges who were to rule on another postponement in October 2012, and Justice Minister Julio Alak stated that if the judges decided against the media law they would be guilty of rebellion.
The accusation provoked a harsh reaction from the opposition. “The independence (of judges) is clearly being affected,” said the Radical Civic Union (UCR) party, while Civic Coalition lawmaker Elisa Carrió said democratic order was under attack with “justice being trampled on and judges being intimidated.”
In this context, President Cristina Fernández announced in her speech opening Congress Mar. 1 a series of bills to democratise the judicial branch, and described the contents of some of them.
She said they would include filling positions by competition, the creation of courts of third instance, publicising the progress of investigation of cases, and electing by popular vote members of the council that designates judges, instead of having them selected by legislators, lawyers and judges.
Fernández said she did not intend to eliminate tax exemptions on judges’ earnings, because when she herself was a Congresswoman she promoted a bill to that end that was dismissed by the Supreme Court.
However, she invited the Supreme Court to review the tax exemption, which she said is inequitable compared with what other taxpayers pay. She also called for the sworn declarations of assets by judges to be made public, as is already the case for members of the executive branch.
In an interview with IPS, María Laura Garrigós, presiding judge of the National Criminal and Correctional Court of Appeals, said Fernández’s proposals are aimed, in general, at legislative modifications.
But there are other changes that can be made without the need for new laws, she said.
“For instance, those of us who participated in the Justicia Legítima meetings were practically unanimous in thinking that entry to the judicial branch should be by competition, and in the Court of Appeals that I preside we have already instituted this,” she said.
Garrigós said that previously, when there was a vacancy, it would likely be filled by acquaintances, relatives or friends. “Holding an open competition means that people who do not know any judges will be able to apply and take the exam to join the judicial service,” she said.
“This means the composition of the staff will gradually change towards one that is more open to society and more heterogeneous,” said Garrigós. Justicia Legítima arose partly because judges are increasingly appointed through competitions, not for political reasons, and that alters the composition of the judicial branch, she said.
She stressed that the changes “are not being made because the executive branch demands them, but because of the vocation of many of us who believe the judicial branch should be more democratic, when previously it has been a rather pyramidal and hierarchical system.
“They are happening now partly because the political context encourages debate; however, they are not a question of party politics, but of macropolitics,” she said.
In line with the ongoing debate, Garrigós also recommended that court employees drop the honorific titles they used to address judges by. In her jurisdiction, “judges in courts of the first instance were called ‘Your Honour,’ and in courts of appeal ‘Your Excellency.’ Now we are all called ‘usted’ (the common form of formal address),” she said.
Garrigós recalled that during the presidency of Raúl Alfonsín (1983-1989) the title of “Excelentísimo”, used to address the president, was eliminated, but in the judicial branch the hierarchical form of address was retained. “It may seem trivial, but we want to proclaim our disagreement with this special treatment,” she said.
Another aim is for the justice system to use less cryptic, more understandable language. Garrigós mentioned that the Supreme Court is already doing so, and there are examples in other countries where courts have used linguists capable of “translating” the contents of court rulings for common citizens.
“We have to learn how to do this. It’s difficult, because it’s easier for us to speak our jargon, but we have to make ourselves understood,” she said.