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November 26, 2014
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Profile of an independent justice

Supreme Court Justice Carmen Argibay passed away yesterday at 74.
By Luciana Bertoia
Herald Staff
Argibay was the first woman to hold a Supreme Court bench in the democratic era

Many things could be said about Carmen Argibay, who passed away yesterday at the age of 74, but no one would dare describe her as a “dogmatic” judge.

Carmencita as many judicial colleagues called her was born in 1939. Before becoming a lawyer, she obtained her first job as an administrative worker in the Court in 1959. Five years later, she graduated as a lawyer, representing the first step in her prestigious career.

“It was difficult to decide what to study. I could have perfectly chosen Literature, History or Medicine but I was inclined to Law,” she said in an interview.

In 2003 when she was working at a international tribunal in The Hague, late president Néstor Kirchner called her to have a meeting. That was the first time the two of them shook hands and that was the moment when Kirchner — determined to renovate a Supreme Court accused of corruption and alignment with former president Carlos Menem administration — offered her a place in the country’s highest tribunal. That offer came on December 30, 2003.

Hers was the second candidacy floated by the Kirchnerite administration and it ignited a heated debate. The first one to be nominated to the top court by Kirchner was Eugenio Zaffaroni, a top criminal law expert with a progressive leaning.

Opposition to Argibay came from conservative and ultra-Catholic sectors, as she defined herself an atheist and also a feminist. The opposition also accused her of being aligned with the government, something that proved to be false as she repeatedly issued rulings against the Kirchnerite administration, including the one that quashed last year the so-call judicial reform package. Argibay also cast a vote in dissent on the ruling that considered constitutional the Broadcast Media Law, the government’s hobby-horse since 2009.

In fact, Argibay did not come from a Peronist background. Her father, doctor Manuel Agustín Argibay Molina, was dictator Pedro Eugenio Aramburu’s Health Minister. Her uncle was one of the creators of a criminal court that ruled over crimes allegedly committed by the left-wing armed organizations in the early 1970s, in what could be thought as a precedent of the state terrorism unleashed during the last dictatorship. Argibay did not pay close attention to family ties and she rejected becoming a member of that court. In 1972, when 16 guerrilla members were killed in a prison in Trelew, Chubut province, she raised her voice to express her rejection.

She was one of the victims of the last dictatorship. The same day that the last military coup took place, a task force burst into her flat.

“They said they came to protect the Constitution. Until now, I have never been informed what charges I was facing,” the justice who passed away yesterday repeatedly said.

Argibay spent nine months in Villa Devoto prison, where she suffered a pre-heart attack.

Though the criminal expert had several relationships, she decided not to get married.

“Not having children was not my election. I would have loved to but it did not happen,” the legal expert said in an interview with daily La Nación. In fact, Argibay considered a baby born while she was in jail as her own son. “My friend (a survivor from the last dictatorship) says he is our child,” the justice joked.

Though she suffered the military regime’s persecution, she issued a ruling that surprised many in 2007. She agreed with Justice Carlos Fayt that the pardon granted by Menem to the military head Santiago Omar Riveros was constitutional.

“It’s a res judicata (a matter that has already been been defined by a court),” she said.

In 2008, Argibay promoted with her colleague Justice Elena Highton de Nolasco the Supreme Court’s Office against Domestic Violence and she also sponsored the Office against Violence to Women.

“When the same-sex marriage law was approved, some believe that we wanted everybody to get married. It was not like that. It meant that if somebody wanted to do it, he would be able to. The same happens with abortion. Every woman must have the right to decide over her own body,” Argibay affirmed.

A provocateur, maybe. Not a dogmatic legal expert though one of the best. A feminist who believed in the expansion of rights. Argibay will always be remembered as the first woman elected by a democratic Congress to hold a seat in the country’s top court.

@lucianabertoia

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