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OP-ED | 18-05-2019 11:41

Editorial: Court caught in credibility crisis (again)

Friends and foes of Cristina Fernández de Kirchner alike immediately interpreted the trial postponement as her virtual acquittal, which it obviously was not – even a punctual trial could not end fast enough to prevent an elected president from potentially pardoning herself at the end of the year so in these terms delay would be irrelevant.

If the mills of the gods grind slowly but they grind exceedingly fine, according to the ancient Greeks, Argentine justice has been the precise opposite in recent days – the “slow” part has been all too true until now, but in the past week the Supreme Court has made a complete U-turn over the commencement of ex-president Cristina Fernández de Kirchner’s first corruption trial in just 36 hours, thus threatening to destroy altogether a judicial credibility already in tatters.

The catalyst prompting this U-turn between Tuesday’s suspension of the trial and Thursday’s confirmation of the original date next Tuesday was a vehement cacerolazo saucepan-bashing protest on Wednesday evening (preceded by social network frenzy against “impunity”), which President Mauricio Macri was rash to celebrate. This imposition of public opinion was perilously close to the “democratic justice” once preached by Kirchnerism – if rent-a-mob tactics serve to twist judicial decisions, two can play at that game and Kirchnerism stands to play it rather better and with greater conviction.

One might well ask why the Supreme Court generated this seemingly gratuitous crisis in the first place but the justices are extremely experienced magistrates steeped in jurisprudence, not political hacks, and their decision obeyed legal criteria which are generally being ignored amid the prevailing “Macri versus Cristina” reductionism. No point in boring readers with the technicalities underlying Tuesday’s decision to request the files of the trial investigating the misallocation of public works funds during the current senator’s two presidential terms but they had more to do with manifest holes in the procedural preliminaries (such as the audits of the evidence) than either the barrage of appeals by defence lawyers or the purely political motives ascribed by the government.

What was far more questionable was the abrupt timing of this move to head off the trial, in stark contrast to the general snail’s pace – especially since the trial cannot possibly conclude in the course of this electoral year and thus need not of itself be politically disruptive. The timing was also questionable in more strictly constitutional terms since the Supreme Court is normally the tribunal of last resort, intervening after the conclusion of all trials and appeals, not before the start. There is also an issue of equality before the law if the Supreme Court is not so meticulous about correct procedure in other trials. But above all, whatever the legal arguments, this move was politically autistic amid the intense polarisation in the month preceding the definition of electoral alliances and candidacies.

Friends and foes of Cristina Fernández de Kirchner alike immediately interpreted the trial postponement as her virtual acquittal, which it obviously was not – even a punctual trial could not end fast enough to prevent an elected president from potentially pardoning herself at the end of the year so in these terms delay would be irrelevant. Yet while the knee-jerk politicisation of this case was both simplistic and paranoid, the public indignation was justified in a broader sense. Procedural flaws might justify the trial’s delay in legal terms but if the final outcome is to make justice impossibly slow, then Wednesday’s protest was broadly right – the danger of impunity for corruption is real enough. Yet stampeding or dictating justice can never be the answer – the only solution is the comprehensive reform of a dysfunctional court system to ensure its efficiency while consolidating the separation of powers (and not subordinate the judicial branch to the executive, as sought by Cristina Fernández de Kirchner’s “democratisation of justice” in 2013).

Within hours of the furious anti-impunity protests, the Supreme Court backtracked early on Thursday with the unconvincing argument that their request for the trial’s files should in no way be understood as its postponement, since there are such things as photocopies. This week’s explosive crisis has thus been defused at considerable cost to judicial credibility. But another looms for next Tuesday already, with the start of the trial. Out of the fryingpan into the fire.

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