Argentina's judicial reform: positive step or consolidation of power?

Opponents of Argentine President Cristina Fernández de Kirchner have long decried what they view as her creeping authoritarianism, and now they have extra fuel for their fire: a controversial overhaul of the judicial system.

Congress will move forward with the passage of six new laws tomorrow that President Kirchner says will “democratize” the courts. International observers, however, have joined domestic critics in warning that her goal may be to control Argentina’s judges and weaken checks on executive power.

The reforms could “destroy the independence” of the judiciary, the United Nations said recently.

Despite the outcry, experts agree that some of the laws are positive steps for Argentina, like encouraging equal access to a system where amiguismo – cronyism – reigns, and increasing transparency by publishing lawsuits on the internet. But other laws are more divisive, including changes to the body that elects judges, placing restrictions on injunctions, and the creation of new appellate courts.

Kirchner first announced she would democratize the judiciary in December, soon after judges renewed an injunction that halted her administration from breaking up media companies. The injunction was brought by Clarín, a major media group and fierce government opponent.

'Checks and balances'

There are two particularly polemic reforms. One, to be passed tomorrow, will alter the Magistrates Council, which appoints and impeaches federal judges here. The other is the limiting of injunctions against the state – approved last month after a heated 21-hour debate in Congress.

Twelve of the Magistrates Council’s 19 members will be chosen through popular elections in which they must represent political parties. Kirchner won a second term in 2011 with 54 percent of the vote and, given her electoral majority, the council will likely fall under the control of her ruling alliance.

Allowing Argentines to select council members is a democratic move, but critics say it contradicts the spirit of republicanism since Kirchner’s Peronist alliance could end up dominating all three separate branches of government.
 
Gabriela Knaul, the UN’s special rapporteur on the independence of judges, cautioned last week that politicizing the council could seriously jeopardize judicial neutrality.
 
“Elections improve transparency,” says Jorge Bercholc, a professor of political law at the University of Buenos Aires. “But the worry is that checks and balances on executive power will be weakened.”

'Sending an army'

The law to limit injunctions – court orders that temporarily restrain government policy – has also drawn heavy criticism. A well-known pro-government organization even forced some changes to the original bill. The law has been branded unconstitutional, too, since it could weaken the protection of individual freedoms.

Judges will now be obliged to hear from the state before accepting injunctions against it. The injunctions will also be held for a maximum of six months. Currently there is no limit.

The reform is broadly considered a reaction to the injunctions by Clarín, taken out to prevent a dismantling of its empire. Kirchner’s foes commonly file injunctions to thwart her and their misuse is widespread: In 2010, police protesting salary cuts brought 17,000 in just one month.
 
“A change is needed,” says analyst Leandro Bullor. “The system is completely anarchic.”

But while the government wants to safeguard itself, critics say the law could impede on civil liberties and property rights. It will now be more difficult to challenge the expropriation of private land, for example. And when bank accounts were frozen during the financial collapse of 2001, injunctions allowed many people to access their savings.
 
“This law is necessary to combat a clear abuse,” says Gustavo Ferreyra, a professor of constitutional law here. “But it’s excessive. It’s like sending an army to combat a problem that can be solved peacefully.”

And Kirchner’s opponents are concerned: Hundreds of thousands of people protested last month in Buenos Aires. They claim she wants to use these judicial reforms to brush aside corruption allegations and help her remove presidential term limits.
 
“This is a clear advance by the executive branch,” says Sergio Berensztein, a political analyst at the Poliarquía consultancy. “The institutional risks are unlimited.”