ARGENTINA: Putting An End to “Justice Made to Order"

By IPS Correspondents Reprint | | Print |

Viviana Alonso

Buenos Aires, Jul 1 2003 (IPS) - The overhauling of Argentina’s unpopular Supreme Court is putting the new government of Néstor Kirchner to the test, presenting it with the opportunity to make good on the president’s campaign pledges of change by showing unconditional respect for the independence of the different branches of the state.

"The shameful way justice was being administered has come to an end," said Kirchner after the resignation of Julio Nazareno, the former chief justice of the Supreme Court, which had become one of the most disparaged of Argentina’s institutions over the past decade due to dozens of controversial rulings, many of which involved corruption cases in which former officials and cronies of ex-president Carlos Menem (1989-1999), and Menem himself, were implicated.

The creation of a new mechanism to give civil society a voice in the process of appointing the new members of the country’s highest court has awakened hopes that the judiciary will not simply become once again beholden to the authorities of the day as occurred since 1990, when Menem expanded the Supreme Court from five to nine judges.

Between 1994 and 1999, the three branches of the state were firmly in the hands of long-time associates from a law practice in the northern province of La Rioja (Menem’s home province): Menem himself as president, his brother Eduardo Menem as head of the Senate, and Nazareno as the country’s top judge.

But Nazareno’s Jun. 27 resignation did not invalidate the decisions of lower courts with respect to the graft accusations against him, or the cases involving the rest of the Supreme Court judges, who continue to face charges before the congressional Impeachment Commission. Eight of the nine remaining justices face between 50 and 70 charges each.

The chief justice’s resignation has opened up a new phase, in line with – the public demand for an overhauling of the institutions and calls for greater transparency and greater citizen participation," Ileana Arduino, assistant director of the Institute of Compared Studies in Penal and Social Sciences (INECIP), told IPS.

The centre-left Kirchner signed a decree on Jun. 20 that reformed the system through which Supreme Court judges are selected, limiting the executive branch’s powers over their appointment.

Under the new procedures, the president continues to present the Supreme Court candidates to the Senate, which makes the final decision. But civil society organisations have now been given 15 days to present their objections.

In addition, the names of the candidates and their financial disclosure reports will be published in the government’s official publication, as well as in the press.

Arduino said the decree was promising, because “this is the first time since 1863 that a president has limited his own powers." But she said such measures “will fall short if they are not part of a process involving a profound transformation of the justice system."

The decree, she argued, should be accompanied by reforms of the regulations under which the Senate approves or discards the president’s nominees, in particular with respect to the hearings, which should be broadcast on TV or otherwise made public, in order to make the procedure more transparent.

Arduino added that public opinion will be closely monitoring compliance with the new decree, and said that if Kirchner does comply, it would become very difficult for a future government to repeal the measure.

The point of reference for Kirchner’s decree was a series of documents titled “A Court for Democracy", produced last year by the Association for Civil Rights, the Centre for Legal and Social Studies, the Citizen Power Foundation, and the Environment and Natural Resources Foundation.

Omar Parrados with the non-governmental Union of Users and Consumers said “there is a positive feeling of confidence and trust" towards measures like the decree limiting the president’s power in appointing judges, but there is also ôa sense of alertness and waiting to see how the process of change goes forward."

"This is part of what the citizenry wants. There is wide agreement with what the government says, but the important thing is to remain observant, to see how their words are turned into deeds," Parrados said in an interview.

Until he handed in his resignation “for personal reasons," Nazareno was facing 22 formal accusations before the legislative Impeachment Commission, including abuse of authority, damages to the state and lack of decorum.

Nazareno’s resignation from the Court, to which he had been named in 1990, allowed him to avoid impeachment proceedings, which according to analysts would have inevitably led to his removal.

His aim was to receive a pension of over 4,000 dollars a month, for which he began the paperwork several months ago, but which the president of the National Social Security Administration, Sergio Massa, said he had no right to because he already draws a pension as a former member of the La Rioja provincial court.

Meanwhile, the Impeachment Commission must decide whether to try the remaining eight Supreme Court judges separately or together.

Judge Eduardo Moliné O’Connor, the vice-president of the Supreme Court and Nazareno’s successor for the time being at least, is facing 67 accusations, while Guillermo López faces 63, Adolfo Vázquez 62 and Carlos Fayt 57. The five tended to coincide in their rulings.

Justice Augusto Belluscio also faces 62 charges, Antonio Boggiano 56, Enrique Petracchi 51 and Juan Carlos Maqueda – who was appointed last year – six.

The resumption of impeachment proceedings against Nazareno was a result of the offensive launched by Kirchner against the highly unpopular Court shortly after he took office on May 25 – a move that clearly set him apart from his predecessors.

The new president did not hesitate to ask Congress to use the “remedy" of impeachment to remove judges accused of malfeasance, which he did in a Jun. 4 message broadcast by TV and radio.

On that occasion, Kirchner responded to the possibility that the Court would issue a ruling converting bank deposits, which were frozen in late 2001 and forcibly converted to pesos by the government of Eduardo Duhalde (2002-2003), back into dollars – which would have caused enormous problems for Argentina’s embattled economy and the new government – by merely stating “I will not tolerate extortion."

The weakening of the faction of the ruling Justicialista (Peronist) Party that is loyal to Menem, after the former president withdrew from the May 25 runoff elections, also undermined the power of the Supreme Court, which had once seemed invulnerable.

Thanks to the parliamentary majority he could count on in Congress, Menem expanded the Supreme Court from five to nine members in April 1990, and packed the Court with justices like his former associate Nazareno, which gave him a so-called “automatic majority."

That left the way free for him to push through, without legal obstacles, the heavily criticised privatisation of Argentina’s public enterprises and a series of ôneo-liberal" and free-market economic reforms.

The “automatic majority" enabled Menem, for example, to privatise Aerolíneas Argentinas, the country’s flagship airline, a move that had earlier been blocked by a court ruling on the grounds that it seriously hurt the interests of the state.

To do that, the Supreme Court used the "per saltum" appeal mechanism that allows it to leapfrog over courts of first instance in matters deemed of great institutional and political importance.