Argentine executive tightens grip on courts
Oxford Analytica (UK). [Analysis]. 09/05/2013.
The Senate yesterday approved the reform of the
Magistrates' Council, the key plank of the government's controversial judicial
reform. The executive is seeking to limit the judiciary's ability both to check
government power and participate in the policy-making process. It is doing so
by promoting the reform of the Magistrates' Council, the limitation of judges'
power to impose preliminary measures, and the creation of third-tier cassation
courts. The reform also includes a tepid attempt to improve judicial
transparency through an access to information law, new regulations for asset
disclosure, and changes in the system for obtaining judicial employment.
Impact
The judicial reform radically reduces already
limited checks on executive power. The reform will now face numerous legal
challenges; the Supreme Court's stance will be crucial. Likely moves to
dismantle the Clarin media group will also curtail opposition voices. Limitations
on the imposition of stay orders will further undermine the business climate. What
next The government's judicial reform initiative is another aftershock in the
battle for implementation of the 2009 Media Law. Although there are many
aspects of the justice system that need improvement, none of them are part of
the reform package. Instead, President Cristina Fernandez de Kirchner has
promoted key changes aimed at expediting the break-up of the Clarin group, the
largest media outlet and noteworthy political opponent.
Analysis
The ruling party will have virtual carte
blanche to nominate and remove judges The reform of the Magistrates' Council is
the most controversial element of the judicial reform (see ARGENTINA: Court
rulings prompt new executive clashes - December 31, 2012). Already reformed in
2006 by former President Nestor Kirchner (see ARGENTINA: Reformed Magistrates'
Council underperforms - October 18, 2007), the government has now enhanced the
ruling party's control of the body responsible for appointing and removing
judges. The are three key aspects of the reform: Enlargement from 13 to 19
members. Currently, the Council is composed of six legislators (four for the
ruling party and two for the opposition), a representative of the executive,
three judges, two lawyers and one academic. The reform incorporates five more
academics and one more lawyer. Under the new allocation rules, four academics will
be named by the ruling party as well as two judges and two lawyers. The
government will then control 13 of the 19 members. Popular election of
representatives. Representatives of judges, lawyers and academics were hitherto
chosen by their own associations, but will now be chosen in regular national
elections by popular vote. In practice, candidates will be included in party
slates, thus forcing potential nominees to negotiate with political parties. Reduced
majority requirement. Hitherto a two-thirds majority is required to nominate or
remove judges, which requires consensus-building across the Council. The reform
will require only a simple majority vote. These moves mean that the ruling
political party will always hold absolute control of the Council, ensuring the
ability to nominate and remove judges without negotiations with opposition
members.
Other reforms
Courts now have limited ability to impose stay
orders in litigation involving the federal government In addition, Congress has
already approved key restrictions to judges' power to impose preliminary
measures (stay orders) in judicial proceedings. From now on, such orders can
only be issued in very specific circumstances, such as when the rights to life,
health or environment are at stake due to an act of government. In practice,
the new regulations severely curtail judges' ability to suspend the effects of a
law or emergency presidential decree, particularly where violation of a right
could lead to economic compensation. If applied to the 2009 Media Law, it
implies that no judge will be able to stop implementation of the law based on
the argument that the new regulatory framework generates economic damages to
media outlets that are forced to sell some of their licenses. Moreover, the
package includes the creation of three cassation courts to deal with labor and
social security, civil and commercial, and administrative cases. This creates a
new stage within the justice system before an appeal reaches the Supreme Court.
Judicial candidates for the new courts will be selected by the new
government-controlled Magistrates' Council. The creation of new appeal courts
suggests that the government is seeking to create a bottleneck that will allow
it to exert more influence over judicial proceedings. Judicial transparency The
reforms approved on May 8 also include three projects aimed at improving
judicial transparency: The first modifies the rules for obtaining judicial
employment. Until now, the hiring mechanism was entirely discretional, giving
judges and courts full control of the selection and hiring process. In
addition, in many cases there were no objective criteria for selecting new personnel.
In practice, access to employment was available mainly to those with contacts
within the justice system. The legislation brings significant changes by
establishing a selection process based on a combination of exams and a lottery.
The second aims to improve the submission and publication of asset declarations.
This has long been a controversial issue: while declarations by members of the
Executive branch were publicly available, declarations by members of Congress
and the judiciary were extremely hard to access. The project creates a unified
mechanism for submitting asset disclosure declaration, which will now be
mandatory for members of the three branches of government. This change will
help to improve transparency and enhance anti-corruption mechanisms. On the negative
side, there will be no active control of the information contained in the
declarations as the project eliminates the National Ethics Commission. In
addition, the unified format for disclosing information is over simplistic and
asset disclosure declarations will no longer be a useful tool for preventing
and detecting corruption. The third requires that all court-related data be
published on the Internet, including materials such as court decisions,
sentences and administrative communications; status of individual pending
cases; and the Supreme Court's daily schedule of meetings and hearings. Although
some of these changes are positive, there are many other aspects of the justice
system that need to be revamped, such as implementing a real access to
information policy; introducing oral, public hearings; and enhancing access to
budgetary and administrative information. Paradoxically, for almost a decade
the government has blocked approval of an access to information law, which
would have established modern standards for access to information in the three branches
of government.
Outlook
The judicial reform package will play a key role in shaping the political agenda for the next two years. The case involving enforcement of the Media Law has reached the Supreme Court. Given its high profile and political sensitivity, it is expected that the tribunal will not wait long to render a decision in the case. After that, the government will seek rapid implementation of the Media Law,
which implies pushing for the dismantling of the Clarin group (see ARGENTINA: Clarin case highlights institutional issues - December 10, 2012; and see ARGENTINA: Government bets on broadcasting bill - October 5, 2009). The government's tight control of the Magistrates' Council, in addition to limitations on stay measures, significantly increases its ability to eliminate any source of interference and accomplish its political objectives before the 2015 presidential elections.
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