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Weekly Report - 09 December 2021 (WR-21-49)

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ARGENTINA: New attempt to reform the judiciary

The Argentine government announced new proposals on 6 December to reform the Consejo de las Magistratura, the key body within the judiciary that controls the hiring and firing of judges.

Argentina’s two main political forces, the Partido Justicialista (PJ, Peronists), currently part of the centre-left Frente de Todos (FdT) ruling coalition, and the centre-right parties in the Juntos por el Cambio (JxC) coalition, traditionally accuse each other of politicising the judiciary and of deploying ‘lawfare’ techniques, described as the launching and manipulation of court cases purely to achieve political objectives.

It is perhaps no accident that the last two heads of state, Mauricio Macri for JxC (2015-2019) and Cristina Fernández (2007-2015) for the Kirchnerista wing of the PJ, face several corruption cases which they claim are no more than political vendettas.

The Consejo de la Magistratura, the body that appoints and has the power to remove judges, is often at the centre of claims of political interference. That makes the current government’s latest reform proposal particularly interesting. Presidential spokeswoman Gabriela Cerruti said that the government was preparing a bill which would increase the size of the body from 13 to 17 members, diluting the influence of political appointees.

Under legislation dating back to 2006, when the PJ was in power, a majority of seven out of the body’s current 13 members could aptly be described as being political appointees: they are three senators and three deputies, together with one representative of the executive power. The remaining six members comprise three judges, two lawyers, and one academic, appointed through professional bodies.

According to Cerruti, the government is now proposing to widen the ‘non- politicals’ by adding another judge, two further lawyers, and another academic.  As a result, the non-political appointees would now have a majority, numbering 10, versus the seven ‘politicals’.

At least two factors may explain this move by the government. One is that it comes after the November midterm congressional elections, when the government lost its majority in the senate, as well as losing seats in the lower chamber. It is widely expected that if the administration wants to pass legislation in the new congress (which is due to be sworn in on 10 December) it will need to seek cross-party alliances. The proposal could, therefore, be intended as something of an olive branch to the centre-right opposition.

In fact, at least one member of JxC, Juan Manuel López, a deputy for the anti-corruption party Coalición Cívica (CC), has welcomed the initiative. López said that the recent court decision to acquit Fernández over money-laundering charges (the Los Sauces and Hotesur cases) showed pro-government political bias by the judges, adding that “there is a problem with the training, but also with the integrity of the judges”.

López said that he would be prepared to support the enlargement of the Consejo as suggested by the government. The CC deputy warned, however, that it might be difficult to build the necessary consensus behind the proposal in a deeply divided congress.

Another reading of the situation raises doubts over the sincerity of any government attempt to offer an olive branch to the opposition parties. In this account, government officials are primarily motivated by the fear that the 2006 legislation which dictates the current composition of the Consejo is about to be overturned as unconstitutional by the supreme court.

There have been persistent rumours that the country’s top court is close to resolving a four-year old challenge to the 2006 legislation (itself introduced by Fernández, who at the time was a PJ senator). If that is the case, preparing a new bill capable of attracting some cross-party support may be a tactically defensive political move, rather than a genuine commitment to seeking bipartisan consensus.

Fragmented congress?

The congressional arithmetic is problematic. The new congress due to be sworn in this week reflects opposition gains and some increased fragmentation after the midterm elections. Half of the lower chamber (127 out of 257 seats) and one third of the senate (24 out of 72 seats) were renewed in the elections. In the lower chamber, no coalition now holds a majority, for which a minimum of 129 seats are required. The ruling FdT holds 118 seats, while the opposition JxC has increased its share and now holds 116.

Almost as important as the distribution of seats between coalitions are the internal divisions within them. In the case of the FdT there are three main caucuses, known as bloques. They are, first, the nationalist/populist Kirchneristas, loyal to current Vice President Fernández and led by her son, Máximo Kirchner. In second place come the Albertistas, the generally more moderate supporters of President Alberto Fernández. The third main group is the Frente Renovador (FR) led by Sergio Massa. Massa has been confirmed as president of the lower chamber.

JxC, on the other hand, now has at least seven component bloques. The number has increased because deputies representing the Unión Cívica Radical (UCR), the second largest party in the coalition, have split into two rival groups. A total of 33 deputies have remained in the official UCR caucus, while 15, loyal to former economy minister Senator Martín Lousteau, have broken away to form a new group called Evolución.

Other JxC bloques include Macri’s Propuesta Republicana (PRO), the largest party in the coalition, with 50 seats, as well as those representing the CC and smaller groups. At the lower end of the scale, Ricardo López Murphy, an economist and former defence minister (1999-2001), forms a monobloque or caucus of one. One of the driving factors behind JxC fragmentation is that various of its leaders are jockeying for position with the 2023 presidential elections in mind.

In the 72-seat senate, the FdT loses its longstanding majority, since it has 35 seats. Here too JxC has increased its presence, to 31 seats.

Overall, the main challenge for the new congress will be whether a consensus can be formed around critical legislative initiatives. Among the most urgent are the approval of the 2022 budget, an agreement on a “a multi-year economic programme” that is supposed to help finalise critical negotiations with the International Monetary Fund (IMF). President Fernández promised in November that an economic plan would be submitted to congress this month, but as this issue went to press it had still not materialised.

Consejo’s composition

Luis María Cabral, a former president of the Consejo de las Magistratura, has welcomed the proposal to reform the body as offering a “more balanced” approach. Cabral argues, however, that the supreme court should also have a representative on the body. 

Public perception

In public opinion there are low levels of trust in the judiciary. There is also a sense that judges fall well short of their necessary standards of independence and impartiality.

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