September 2, 2014
Judging the judges
However wisely and carefully drafted a legal code might be, it is only as good as the judiciary applying it in the final analysis and the news concerning judges has been disturbing in recent days. If the Penal Code reform debate has been unduly politicized (mostly by an outburst of populist opportunism from Sergio Massa’s Renewal Front), much the same could be said of the Magistrates Council as an institution. It all started 10 days ago when the controversial Federal Judge Norberto Oyarbide admitted to calling off a police raid on a financier on government advice. This was interpreted by many media as a confession to flouting the independence of the judiciary by tamely accepting the orders of the Cristina Fernández de Kirchner administration but Oyarbide would never have spoken out so freely had that been the case — having been tipped off by a reliable (albeit government) source that the police were using the raid to extort bribes from the financier, Oyarbide was quite convinced that he did the right thing in suspending this tainted operation and had no problems saying so. Even then, Oyarbide was not in the right — he should have both investigated the bribery accusations and gone through with the raid using a different security force (e.g. the Border Guards) — and his previous track record makes it very hard to consider Magistrates Council scrutiny of his case an outrage but nevertheless there has been an element of media lynching about the way his flawed reaction has been misrepresented and politicized.
Not that Kirchnerism is innocent when it comes to unduly politicizing the Council. Its pro-government members promptly diverted fire from Oyarbide to another federal judge, Claudio Bonadio (who has recently had such key ex-officials as Guillermo Moreno and Juan Manuel Abal Medina in his sights), digging up two cases from a couple of decades ago to accuse him of malfeasance. Three of the four charges basically accuse him of being slow but when is Argentine justice not (thus the relative speed with which the Once railway disaster trial began this week 25 months after the tragedy has aroused comment)?
Without taking any sides in either of these cases, such selective scrutiny only confirms what has been known for a long time — that the Council of Magistrates is dysfunctional. If the modernization of the Penal and Commercial Codes does go ahead, it would be a grave error not also to reform the various institutions responsible for its enforcement.