May 18, 2013
By Michael Soltys
Buenos Aires Herald Senior Editor
Until the judicial reforms announced in President Cristina Fernández de Kirchner’s state-of-the-nation speech last Friday are spelled out in the form of the specific bills submitted to Congress (probably as from next week), any comment on them now is almost as speculative as on the day itself — if the devil lies in the detail in any parliamentary legislation, all the more so when the subject is the law itself. Most of the criticism thus far has centred on a perceived attempt to bulldoze the independence of justice, converting the judiciary into an adjunct of the executive branch by subjecting it to the same electoral majority and thus undermining the separation of powers. This editorial would like to offer a different line of criticism — even extending the benefit of the doubt to this package as an honest attempt to democratize the judicial system and improve its operational efficiency, have the reforms been sufficiently thought through to achieve these objectives?
An especially fundamental potential contradiction is with the CFK administration’s much-vaunted human rights principles. If last week’s final approval of the controversial agreement with Iran has turned Argentine foreign policy upside down, these judicial reforms could have a similar, if possibly involuntary effect on a progressive approach to human rights. If the membership of the Council of Magistrates is to be subjected to democratic election, mass passions might well be more easily aroused by calling for much harsher treatment of crime than by complaining about the obstructive effect of court injunctions on government policies which have far more to do with a hidden agenda than with popular demand. This danger is far from abstract — in Friday’s endless speech CFK once again complained about criminals “entering by one door and leaving by the other” in a dig at lax judges and this line is very tempting tactically in a conflict of powers with the judiciary. Opinion polls have shown close to half in favour of the death penalty and it would not take much coaxing to turn a large minority into a majority — even if this effort were not made, this could still be the result of subjecting judicial procedure to public opinion to the dismay of the government’s human rights supporters.
As for the aim to improve the speed and efficiency of justice (as CFK said in her speech, slow justice not only means impunity but also harms the innocent since all charged are assumed guilty), new appeals courts might well prove counterproductive by creating extra instances but for this and all other aspects of the reforms, we must await the full details of the bills.