Hoist with own petard?

By Michael Soltys

Buenos Aires Herald Senior Editor

Between the traditional January court holiday and the presidential absence in Asia, the conflict between the executive and judicial branches of government has fallen largely into abeyance for now, but this truce might be a good time to bring attention to an aspect which tends to go unnoticed when battle is raging between those who would remove all legal obstacles to implementing the will of the people via their elected government and those who would defend constitutional checks and balances. The headlines have all tended to focus on the judiciary’s alleged defence of the “corporations” via injunctions as the cause of government objections but there is also a rather more complex problem which has its roots in Kirchnerite human rights commitments. The latter have increasingly been colliding with a populism which responds to the law and order anxieties of the general public not in the form of effective crime-fighting but in making the state a kind of co-plaintiff against an allegedly permissive judiciary — if the “democratization of justice” has been a presidential watchword for over a month now, this perhaps not only refers to aligning court rulings with electoral majorities but attuning penal procedure better to a public opinion in which capital punishment might well be a majority aspiration (not that this extreme measure is on the immediate horizon).

This shift might also explain a growing hostility towards the judiciary. If the early years of Kirchner presidencies subordinated the war on crime to the defence of rights as a matter of principle, favouring the advance of judges who sometimes defended the rights of criminals to a fault — such judges have now become an embarrassment to a government which is always going to favour populism over principle in an election year. This populism has not yet led to the adoption of harsh law and order methods against crime but does take the form of deploring crime as not so much due to poor policing as a judiciary which allegedly acquits criminals as fast as they can be arrested — last month’s Marita Verón white slavery trial acquittals brought such thinking to a head. Obviously these critiques are not unrelated to the political feud but this factor might well explain better why so many benches remain unfilled — President Cristina Fernández de Kirchner does not want to advance the latest generations of judges created by Kirchnerite ideology but now at odds with its political interests.

A subtext worth bearing in mind in what often looks like a straight clash between branches of government.