Argentina and the Judiciary: subverting the rule of law
The upper house in Argentina’s Congress has approved a series of laws proposed by the government that allow the executive branch to exert considerable influence over the judiciary, threatening the already limited independence of the country’s judicial system.
Under these reforms, the Council of Magistrates (Consejo de la Magistratura), which is in charge of several key functions in the judiciary including proposing candidates and removing them, will be elected by citizens.
This gives undue influence over the judiciary to the party in power. In the Transparency International 2011 Global Corruption Barometer people in Argentina identified political parties as the institution they perceived as most corrupt. In addition, judges that run on the ticket of the ruling party will have a significant advantage because the government can more easily promote its nominees in a process that will be unfamiliar to the electorate.
The government has claimed that the new laws are “democratising the judiciary”, but in reality rather than promoting democracy they threaten the country’s rule of law by concentrating too much power in the executive branch.
The timing of the new law, which will have to be passed by the lower house, highlights the tension between the political and the judicial branches of the state. In recent months, the courts have refused to allow legal moves by the government to break up media groups seen by President Cristina Kirchner as monopolistic and biased.
The latest proposal was roundly criticised by civil society and the press. Poder Ciudadano, the Transparency International chapter in Argentina, issued a statement calling on the Senate to reject the laws.
In a high profile scandal, in 2012 Vice President Amado Boudou was accused of illegal enrichment, money laundering and influence peddling to allegedly prevent the bankruptcy of a mint and printing company. Rather than leading to legal consequences for the accused, so far the allegations have resulted in the removal of the presiding judge and resignation of the prosecutor. This followed Boudou’s alleged business partner’s accusations that the presiding judge lost his objectivity. Criminal charges were brought against the prosecutor by Boudou himself.
The move by Congress comes just one day before a march against the government that is expected to bring large crowds on to the streets of Buenos Aires and other major cities, the second such protest in less than six months. Many people in Argentina are dissatisfied with the high levels of corruption and impunity in government circles.
An independent judiciary, unafraid to hold government to account, is an essential element of any strong system to fight against corruption. Without credible rule of law government officials, particularly in the executive, cannot be held accountable for their actions. A judiciary beholden to the ruling party cannot be counted on to act impartially.
Reforms in the judiciary to strengthen its independence should be made a priority – Argentina ranks 133rd out of 144 countries for judicial independence, according to a 2012-2013 report by the World Economic Forum. However, the current package of reforms will only further curtail independence in the judiciary.
Judicial reforms: Recommendations for Argentina
Judicial corruption is a threat in many countries, as noted in the 2007 Global Corruption report on the judiciary. Argentina was singled out as a country where government control of the judiciary is too strong. The recent reforms reinforce and broaden the government’s powers. We recommend the following:
- The separation of powers between the executive and the judiciary needs to be strengthened
- Citizens must be guaranteed access to justice fairly, without fear of political interference, and in a timely manner.
- There must be a broad discussion on the nature of the reforms, which includes input from civil society.