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OP-ED | 01-08-2020 09:07

Judicial reform and jumping the queue

The judicial reform bill announced this week suffers all the problems of Caesar’s wife – it must not only be honourable but seen to be so, a challenge which neither its context nor origin nor timing favour.

The judicial reform announced by President Alberto Fernández in midweek suffers all the problems of Caesar’s wife – it must not only be honourable but seen to be so, a challenge which neither its context nor origin nor timing favour. Before probing any further into details, the first question must surely be why judicial reform at all at the peak of the pandemic amid global economic collapse? To see court restructuring as Argentina’s most urgent priority today is a colossal stretch – if the masses are not out in the streets clamouring for judicial reform, this is not just due to quarantine. For that reason, even if this institutional reform were a statesmanlike vision taking future Argentine justice down the hallways of truth and courage, it would be a potentially disastrous move at the crudely political level – further distancing a people suffering disease, crime and acute economic uncertainty from autistic elites.

The problem of this Caesar with judicial reform is not so much his wife as his vice-president – the opposition assertion that the whole package is nothing more than impunity for Cristina Fernández de Kirchner is extremely simplistic but no other explanation for this untimely initiative springs forward (bar perhaps a fear that the numbers in Congress may be weakened in the midterms). In fact, it is hard to find anything in Wednesday’s announcements which directly serves to take the veep off her graft trial hook (the next day’s decision by the Council of Magistrates to approve the review of the transfer of judges to Comodoro Py federal courthouse was far more apposite here) and for that matter an unreformed system which “speeds or slows trials in function of the reigning political climate” (in the presidential words) fits that bill perfectly well. But, short of assuming President Fernández to be so much the law professor that he is genuinely blind to all other urgencies, it becomes even harder to ignore the elephant in the room, however primitive the suspicions.

To suspicious minds Wednesday’s reform package was basically an abstract distraction – attention should instead focus on Thursday’s Council of Magistrates decision and also the Consultative Commission whose members accompanied the presidential announcements. The mere fact that this commission to vet the Supreme Court includes Fernández de Kirchner’s defence lawyer, Carlos Beraldi, would surely permit the suspicious to rest their case – just as Argentina’s football squad has for decades been “Maradona/Messi and 10 others,” so the 11 members of this commission become “Beraldi and 10 others” (even if the others include Mauricio Macri’s nominee for attorney-general). Yet the origins of this commission potentially redefining the Supreme Court might lie not so much in the Kirchnerite graft trials as in the Reconquista court ruling nixing the Vicentin trusteeship in mid-June – if an obscure provincial judge could derail the ambitious “food sovereignty” drive to annex the country’s leading cash cow sector, the government might well have decided there and then that nothing less than total control of the justice system from the top down would enable them to implement their plans (whatever they might be).

As for the judicial reform itself basically aiming at decentralisation of federal courts, neither our newsroom’s limited legal expertise nor space permit entry into too many technical details. But we might ask in passing – if judicial and diplomatic pensions were slashed as the top priority last March as soon as Congress re-opened to save money (although the more cynical suspected a hidden agenda of accelerating judicial turnover) and if debt renegotiation has been deadlocked since then on the argument that Argentina cannot repay a cent more with half its children starving, how can the creation of 70 new judicial benches between Comodoro Py and inland federal courts be justified?

But fulminating against this judicial reform could be a waste of time because it might well prove stillborn, given that fundamental institutional transformations without consensus historically do not stick – Carlos Menem understood this back in 1993 when he recognised that a constitutional reform for his re-election was impossible without his predecessor Raúl Alfonsín on board but President Fernández today does not. Nobody could deny that Argentina’s judicial system is long overdue for modernisation but what gives it the right to jump the queue ahead of so many other priorities – state reform as a whole, federal revenue-sharing, the electoral system and campaign financing, anachronistic labour legislation, tax reform (by which we do not mean a moratorium tailor-made for multi-billion crony capitalist tax evaders), etc. etc? But with a raging pandemic and an unprecedented economic meltdown, who needs any other priorities?

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