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Sunday, December 4, 2016
- Comprehensive judicial reforms pushed by the government of Argentina on the argument that they will democratise the justice system are moving ahead in Congress in the midst of staunch resistance by the opposition, heated debate, and threats of future lawsuits challenging them as unconstitutional.
The package of laws presented Apr. 9 by centre-left President Cristina Fernández includes six changes aimed, as she said, at “making the country’s most important branch of power – because it is the last place where the life, freedom and patrimony of Argentina’s 40 million people are decided on – more modern and transparent.”
On Wednesday and Thursday, the Senate approved two changes that will now become law: the creation of three new appellate courts, to ease the backlog of cases that reach the Supreme Court; and regulations of court injunctions, a tool used to prevent irreparable damages to people or entities by a new law.
Another change that was approved by both the lower and upper houses but must return to the Senate for another vote would expand and change the process for the designation of the members of the magistrates’ council, which appoints and removes judges.
Three changes that made it through the Chamber of Deputies and now go to the Senate involve open competitions for jobs in the judicial branch; a requirement that the wealth declarations of judicial, and not just executive and legislative authorities, be published online; and a requirement that all federal court rulings be published online.
The opposition parties in Congress refused to set forth complementary ideas, arguing that the aim of the reforms is to increase government control over the judiciary, and saying they pose a threat to the country’s institutions.
One of the most heavily debated reforms was the one that would regulate and set deadlines for the application of indefinite court injunctions, which often keep laws from going into effect for years. This change became law after incorporating modifications proposed by civil society organisations.
When she presented the reforms, Fernández said that through the “abusive” use of court injunctions, the Grupo Clarín media group had failed to comply with the media law in effect since 2010, by challenging the law in court.
But human rights, environmental and labour groups warned that setting deadlines for injunctions would go against a number of citizen rights, especially the rights of the most vulnerable segments of society.
In response to these criticisms, ruling party lawmakers agreed to create an exception for the setting of deadlines, when “the dignified living conditions, health, or a right that involves food or the environment” of socially vulnerable sectors are under threat.
Also criticised was the proposal to expand the number of members of the magistrates’ council, from 13 to 19, and in particular, the article stating that the members must be elected by popular vote.
“The problem here is that a judge that wants to run for the council would have to campaign alongside political parties,” Álvaro Herrero, a lawyer with the Civil Rights Association, told IPS.
The council is currently made up of one member named by the executive branch, three judges, two representatives of lawyers’ associations, one academic, two senators and two deputies representing the largest party in each house of Congress, and one senator and one deputy representing the second largest party.
Most of the reforms approved by the Chamber of Deputies on Thursday will go back to the Senate.
But the second reform that will become law was the creation of three new appeals courts, to handle administrative, civil and commercial, and labour and social security cases. There is currently only one appeals court at that level.
The idea is to keep so many cases from accumulating before the Supreme Court.
The governing faction, the centre-left Front for Victory in the Justicialista (Peronist) Party, was confident that it could muster the votes needed to quickly pass the six reform bills.
But it ran into resistance by the opposition and criticism by civil society and academic organisations.
The debates thus raged on, with the governing party legislators and their allies incorporating changes and adding clauses suggested by human rights associations, legal experts and academics.
Despite the modifications, the right-wing, centre-right and centre-left opposition, backed by street demonstrations, did not accept any of the proposed reforms.
“The government is attempting the final assault on the judicial branch,” argued Mario Negri of the centrist Radical Civic Union.
Deputy Francisco De Narváez of the right-wing faction of the Peronists warned that “Argentina’s institutions are in a situation of extreme danger.”
Raúl Ferreyra, a professor of constitutional law at the University of Buenos Aires, said “the reform has two faces.”
“I see some good things and some very bad things” in the proposed reforms, he said in an interview with IPS.
“I really don’t like this debate that took place in just a few hours,” he said, although he insisted that there were positive aspects in the proposed reforms.
He was referring to the requirements that wealth declarations and court rulings be published online, and to the open competitions for hiring judicial personnel based on their merits, rather than connections and nepotism.
Ferreyra lamented, however, that the reforms did not resolve the question of better access to the justice system by ordinary citizens. He also said the regulation of the court injunctions, even with the added modifications, “leaves the most vulnerable without protection.”
In addition, the academic questioned the creation of new appeals courts as “unnecessary” and said they would only slow down the handling of cases.
But he agreed with the modifications of the magistrates’ council. “It shouldn’t shock us that in a hyperpresidentialist system, a president would come up with this kind of reform,” he said.
Ferreyra said that, despite the wide criticism, the judicial reforms “are legitimate” because they are backed by a president who was reelected with 54 percent of the vote.
“For the first time in 30 years, they want to discuss a reform of the judiciary, and that’s a good thing,” he said.
But the opposition legislators most vociferously opposed to the reforms said they would challenge their constitutionality, once they are passed into law.