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'No other country dared to do what we did'

Justice Elena Highton de Nolasco talks to the Herald in her office at the courthouse located on Talcahuano street.
By Sebastián Lacunza & Luciana Bertoia
Herald Staff
Highton de Nolasco would prefer a woman to be appointed to the SC if a vacancy arises

A month after Justice Carmen Argibay’s passing, Elena Highton de Nolasco remains as the only woman in the country’s highest court, composed now of six members. A recognized authority on civil law and widely known as the silent justice, the Deputy Chief Justice welcomed the Herald — the newspaper she has read since she was a child — in her office. There she spoke about political and economic lobbies, pending reforms, the access to justice and reflected on her ten years as a Supreme Court justice.

After the death of justice Carmen Argibay, you took over the Supreme Court’s Women’s Office. Do you think there is a sexist environment in the judiciary?

Discrimination is everywhere but people have only recently started to become aware of it. Some provinces are certainly worse than others. And there even used to be some sexist justices in the Supreme Court—but the culture is slowly changing.

Do you mean there are some justices in the Supreme Court who have sexist leanings?

No, I wasn’t talking about the federal Supreme Court. This is a court that is willing to take on issues of gender policies and isn’t sexist.

Looking at other countries in the region, does Argentina stand out as having one of the smallest numbers of women in key roles in the judiciary?

No, I wouldn’t say that. It’s true there are more men in the highest posts—and I’m the only woman on the Supreme Court. But it’s the same in other countries, and some are even worse.

Does the Catholic Church influence the justice system?

Just because the country is majority Catholic it does not mean religion affects decisions. Some judges that are not in the Supreme Court have a strong Catholic ideology and they do sometimes pay more attention to religion than laws. There are some provinces with powerful conservative priests who try to exert their influence. I don’t know if they make phone calls to judges, but they do influence some decisions.

What’s your opinion of judges who have a crucifix in their courtroom?

We have yet to issue a ruling on that issue so I’d rather not say anything on that. Personally, I’m not bothered if I see a crucifix.

Why are some provinces behind others when it comes to access to justice?

When we talk about access to the justice, it doesn’t just involve taking a case to the courts. It must also consider other alternative forms of problem-solving, such as mediation and offices that deal specifically with domestic violence and public information. Most of the provinces have fallen behind due to budgetary issues.

How many provinces, for example, followed the Supreme Court’s lead and created an office for violence against women?

I signed an agreement with the 23 provinces but only Tucumán, Santiago del Estero, Salta and Santa Cruz have an office up and running.

What’s your opinion of calling for public competitive exams as part of recruitment for positions in the judiciary?

That still has to be implemented. It won’t be an easy process but we’re working on it. In the Office against Domestic Violence we’ve always followed that strategy.

Does that mean you agree with the reform?

The truth is that if you don’t have an open competition, people often get jobs in the judiciary only because they know a judge or one of his or her relatives. I believe that competition is a good option because you can choose between qualified candidates.

Changing the way the courts do their hiring was part of a broad judicial reform package that was analyzed by the Supreme Court. Do you agree with the premise that the judiciary must be reformed?

We’re always undergoing reforms even if they may not have the force of law. For instance, our decisions to upload all rulings to the Centre for Judicial Information website or to create offices to facilitate access to the justice system are also reforms. What’s important is to bring justice closer to the people.

What about having judges pay income tax like everyone else?

We’re working on it.

Are you going to issue a decision?

Yes, but I don’t know when.

How do you act in very controversial cases, for example the Broadcast Media Law, in which there were forceful rallies organized by the ruling party? And how about after the ruling which declared the Media Law constitutional, when aggressive opinions were uttered by journalists and opposition leaders tried to launch impeachments against some justices?

Many things became evident during the public hearing, then we issued the ruling. There are different expectations and sometimes one of the sides gets angry, usually the one that loses (laughs).

But does it affect you if a lawmaker vows to begin impeachment proceedings for a justice after a ruling or if a judge is caricatured in a rally?

Within the boundaries of respect, everyone is free to say what he or she wants. Some judges may feel personally attacked and that’s a more complicated issue.

Did the public hearing for the Broadcast Media Law make you change your mind?

When you have a case, you start thinking about it but the final decision comes when you are writing your vote. It’s difficult to identify a defining element. The important thing is what parties have already said in the case. The hearing clears things up and makes everything visible.

Sometimes associations of judges issue press releases to answer criticism.

I think that’s fine. They usually do that after there’s been an excess and they demand respect or caution. When something is being judged, they don’t issue press releases.

Don’t you agree with the idea that judges tend to protect each other?

That only happens when there is an inappropriate attack, not when a judge has to face an impeachment tribunal. The first ones to report a judge for malfeasance are his or her colleagues. Removing the bad apple is a good way to protect the rest of the judges.

Does any aspect of the relationship between the Court and other branches of government or business interests concern you?

No. In the Court, we have an institutional relationship with everybody. Maybe in some provinces there are governors who try to influence the courts.

Why do you think the number of complaints filed with the Office Against Domestic Violence is increasing? Does it have to do with increased awareness or increased violence?

More people are coming every day, probably because the office is becoming better known. But maybe society is more violent as well. Gender violence is also a concern. We are now investigating rapes that took place in the clandestine detention centres that operated during the last military dictatorship. Rape was another form of torture.

What about the discussion over abortion?

The Supreme Court made an interpretation of what the Penal Code says. I’m not going to make any other reference to that issue.

But when implementing the Supreme Court decision, public institutions have different criteria and even some courts look at the issue through different lenses.

We made recommendations but the ruling only has an effect on the one case.

What’s your opinion of the Civil and Commercial bill passed in Senate last year?

I want it to pass. I don’t remember the recent amendments though I was informed of them. Despite the changes, I think the Code must be approved.

But are there any amendments that upset you?

Moving forward with the Code is what matters. It’s going to change everyday life in the country because it would modernize several social institutions.

Are you interested in overhauling the Penal Code?

I did not take part in that drafting commission. That discussion is in its early stages.

If two other members of the Court left and one had to be appointed, would you prefer a woman?

Yes, I would find that appropriate.

What is your opinion of trials by jury?

The Constitution calls for them and I think they’re fine. It’s important to see the conditions in which they will be held.

Even if they ultimately limit the power of a judge?

I welcome alternative methods of deciding a case and the Constitution calls for them to be created. When you share the burden of a decision it also promotes access to justice. When a mediator solves a case, for instance, it’s good news because the case doesn’t have to be taken to court. My dream would be to not have judges because every controversy is resolved peacefully.

Has a government official or a business leader ever tried to pressure you on something?

Not once in the 40 years I’ve been in the judiciary.

What do you see as the most important ruling that was issued during your almost 10 years at the Supreme Court?

That is a difficult question because the importance of a ruling varies from one person to another. For journalists, it was the Broadcast Media Law ruling. For some women’s groups, it was the non-criminalized abortions.

What about the so-called “Julio Simón ruling,” that reopened the trials for crimes committed during the last dictatorship?

That has certainly become a milestone and is a ruling that is studied abroad because no other country dared do what we did, that is to judge these crimes with a competent judge, not an ad hoc tribunal like in Nuremberg. Along with Arancibia Clavel, which deals with statute of limitations, and the ruling that struck down pardons (granted to the military by former president Carlos Menem), they all form a block that has become a key part of Argentine history.

Are you proud that Argentina is trying to judge Francisco Franco-era officials for crimes against humanity?

That is part of what had happened here in Argentina. When a country does not take those responsible to court, others can do so because a crime against humanity affects the whole of mankind. All this promotes a better defence of human rights.

@sebalacunza @LucianaBertoia
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