Argentina’s Supreme Court has ruled that the controversial Counsel of Magistrates reform, drafted by the Cristina Fernández (CFK) administration, is unconstitutional and suspended the election of the twelve members up for the popular vote in the next election. The result was six votes in favour and one against.
Under the proposed CFK ‘democratization of justice’ slogan the new counsel (which is responsible for the naming, sanctioning and firing of judges) would see its number increased from 13 to 19, of which 12 are to be elected by universal suffrage with political parties nominating candidates. Elections for the magistrates are to be held at the same time as the parliamentary and/or presidential elections, in this case the coming October mid term election.
In practical terms this would mean that from the entry of the new legislation, judges will be elected or removed from office by the same political majority that controls congress and/or the Executive at any given time and will be elected through the political parties they represent.
Another aspect of the bill that was declared unconstitutional is that to be able to present candidates to the counsel, a political party must have national representation in eighteen districts (provinces), without counting any possible inter-party alliances. In fact, the only party to have such representation is the governing Frente Para la Victoria (FPV).
And if this was not enough the new courts will be elected by a majority vote within the Counsel of Magistrates, and until the mechanisms of the new Counsel is in force, the Executive will be able to nominate interim judges to the new courts - needless to say that the Executive could delay the election of permanent judges via the Counsel of Magistrates for a considerable time.
As anticipated practically all lawyer associations, independent judges and opposition parties united in condemning the new measures as a serious assault on the Argentine Constitution.
The decision in a 67 page document, is a major blow for Cristina Fernandez and political analysts don’t discard that the Argentine president might try to circumvent the situation by removing some of the Supreme Court Justices.
According to the ruling Justices Ricardo Lorenzetti, Juan Carlos Maqueda, Elena Highton de Nolasco and Carlos Fayt voted against it. Carmen Argibay and Enrique Petracchi also ruled against it, although they stated their votes were “concurrent.” Justice Eugenio Zaffaroni voted in favour of the reform, but he said he was against the reform in general.
Zaffaroni, who is described the Justice closest to the government, also explained that even if the court had ruled in favour of the law, the election would have been suspended nonetheless by other injunctions.
“It is necessary to explain that despite our decision, the electoral process concerning the Council of Magistrates is suspended due to other injunctions,” he insisted.
Among the many arguments the Justices said that the Judiciary branch “has the democratic legitimacy from the Constitution which does not derive from popular suffrage”.
Likewise, under the new draft “directly or indirectly, the totality of members from the Counsel would have a political and partisan origin” and besides it ignores the guarantees that ensure an independent Judicial branch from the interests of the Executive, Congress or any other factor of power, in so far “it forces the judge aspiring to be a member of the counsel to opt for a political party”.
The ruling which was anxiously expected by the Argentine political system following a week of strong statements and pressure on the Court from members of Cristina Fernandez cabinet and lawmakers, was celebrated by the congressional opposition.
Lawmaker and head of the PRO caucus Federico Pinedo said: “We celebrate the ruling because democracy has been made stronger”.
Omar De Marchi (from the Democratic Party of Mendoza) assured the ruling “put a limit to the Government’s abuses on the other branches of power.”
Eduardo Amadeo (Peronist Front) said that “the ruling is a great triumph of democracy, because it assures independence of all branches of power”. He said “only an independent justice can ensure that human rights are respected”.
Lawmaker Patricia Bullrich admitted that the ruling “defends the citizens from the Government’s craziness”. She said the ruling “limits the Government from becoming the absolute power”.