June 18, 2013
The media are no longer the message
By Michael Soltys
Buenos Aires Herald Senior Editor
Just a few days ago Judge Horacio Alfonso’s ruling upholding the constitutional validity of the Broadcasting Law right at the end of the week would have stolen all the limelight — now it seems almost a sideshow within a far more general government onslaught on the judiciary with the stakes considerably raised beyond the media dispute. To be sure, the concrete effects of Alfonso’s ruling (whether any new appeal by the Clarín Group would offset the loss of the injunction freezing divestment pending a ruling and whether enforcement of that divestment would be immediate or within a year) will probably command attention in this coming week while the Cristina Fernández de Kirchner administration works out exactly what shape its “democratization” of justice should take but there can be no doubt that tightening executive branch control over the judiciary would be a far more significant advance for government hegemony than even the biggest media battles — even if this judicial overhaul does not lead to a constitutional reform also allowing CFK to bid for a third term.
The first move to exploit the mass indignation over the Marita Verón white slavery trial acquittals at an institutional level as against mere rhetoric took the form of proposing trial by jury (already contained in the 1853 Constitution and more recent parliamentary bills alike) but this is unlikely to satisfy the government appetite for “democratization” — after all, various Anglo-Saxon countries have trial by jury without the independence of justice being impaired in any way. There has been talk of making judges elective and scrapping tenure in order to “subordinate justice to the popular will.” But even if the CFK administration does not go through with this drastic step, it could quite legitimately adduce chronic problems with the Council of Magistrates created by the 1994 constitutional reform and move to overhaul it, in the process installing the built-in government majority it currently lacks and establishing absolute control over the judiciary.
Any attempt to erode the separation of powers in favour of the doctrine that the judicial branch is but part of a state headed by an elected government and must follow its leadership should be followed with the utmost vigilance and resisted by the citizenry. As Herald columnist James Neilson wrote last Thursday, if the popular will is the motor, laws and institutions serve as the brakes to prevent the vehicle from crashing into others or plunging over a cliff. Subordinating justice to the popular will thus not only looks like dangerous driving but also riding a tiger.