International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2013 Issue

Judicial Reform Report


A Light at the End of the Tunnel for the Dramatic Decline of Justice and Protection of Fundamental Rights in Argentina

Lucia DruettaBy: Lucia Druetta, Assistant Editor, International Judicial Monitor and Director of Academic Programs, International Judicial Academy

The Supreme Court of Justice of Argentina has just struck down a substantial part of Argentine President Cristina Fernandez de Kirchner’s so-called judicial reform.

Under the populist slogan of the 'Democratization of the Justice’, President de Kirchner aimed to control the judiciary in Argentina. There followed complaints from UN Special Rapporteur Gabriela Knaul, the Catholic Church, rule of law abiding countries, Argentine judges and lawyers’ associations, recognized universities of Argentina, and prestigious human rights organizations. The Argentine people also took the streets to protest this imminent threat to the independence of the judiciary, and most seriously, to the separation of powers inherent in any republic that claims to be such. The Supreme Court was finally able to curtail President de Kirchner’s efforts to undermine the judiciary.

The “reforms”consisted of six bills that were passed by Congress in the span of two months. They dealt with: a change in the structure of the judicial council (Law 26, 855); the regulation of precautionary measures in cases in which the Republic of Argentina is a party (Law 26,854); the creation of three new courts of cassation (Law 26,853); the creation of “equal access to justice” and to the Public Ministry Prosecutor and the publicity of the affidavits from judicial officers (Law 26,857); and publicity of court decisions (26,856).

The first three laws, which were now challenged in the courts, are the most controversial, as follows:

1) Judicial Council: This body was set up within the judicial branch. It is responsible for the selection of judges and for the administration of the judiciary. It was created with the 1994 amendment to the Constitution (art. 114) and has been regulated by Law 24937 of 1999.

The rationale put forward by the Government when drafting this bill was the need to “extend the democratization process over the Judiciary” and to promote popular participation and improvement of the different classes in the composition of the Council and easier decision-making mechanisms in order to avoid the paralysis that hampers the body. The text expressly recognized that "conflicts that are settled there involve and affect the entire population’s often most precious aspects such as freedom, family relationships, wealth, work etc. The importance of these issues discourages that they be limited to the management by lawyers.” The criticisms that have been made to the new law point to the number of members, composition, selection procedure and majority required for internal decision-making.

The Council consists of thirteen members: three judges, six legislators, two lawyers, a representative of the executive branch and a representative from the academic and scientific field, who were all elected by their peers. The new “reform” aimed at increasing to nineteen the composition of the body - adding a lawyer and five representatives from the academic or scientific field - and establishing as the selection method of its members, the popular vote in national general elections for president, pursuant to an open primary (Law 26,571). The purpose was for the various political parties to have their own list of counselors in the upcoming elections. What is more, according to this method for selection of Council members, the political party that won the national elections would have got the majority of the members on the Council. Thus, the ruling power would have prevailed in the decisions made by a majority of the members, depriving minorities of any opportunity to influence the decision-making and replacing the two thirds required in the previous law. Such decisions include the appointment and removal of judges, the application of sanctions, and the administration of the judiciary, including the management of the Judicial School.

In a concise but very clear and pedagogical decision, the Supreme Court of Justice declared that the provisions of the law related to the composition of the judiciary council (art. 2), to the method for selection of counselors (art. 4 and 18) and to the call for elections pursuant to an open primary to select the counselors (art. 30) were unconstitutional. The Tribunal also declared inapplicable the amendments regarding the quorums, majority regime and the composition of the board committees within the Council, restoring the provisions of the previous law. Finally, the Supreme Court left without effect the Decree 577/13 that called for the selection for counselors.

In its decision, the Supreme Court pointed to basic principles of the Republic, such as the division of powers and the supremacy of the Constitution above any other power, including the Judiciary. The Court also underscored that constitutional review is a mandate given by the people to protect the supremacy of the Constitution and to enforce constitutional rights and guarantees. To that end, it named some of the most known cases where the Court declared unconstitutional some laws passed by Congress. The Court recalled that the constitutional principle of  ‘popular sovereignty’ does not imply a right to ignore the legal order.

As to the legal grounds of the decision, the Court analyzed the scope of article 114 of the Constitution. This provision requires a balance "between the representation of the political bodies resulting from the popular election and of judges of all instances” and lawyers admitted to federal practice. The Tribunal found that the counselor members of the Judicial Council act on behalf of each of the different sectors named (judges, legislators, lawyers and academics/scientists). For this reason, they had to be elected by their own peers and not through popular vote. Furthermore, the Tribunal interpreted that the academic and scientific sector was not meant to have a central role in the body, as the ruling party pretended through the reform.

However, the reason beneath the creation of the Judicial Council was the strongest point of the Court’s decision. The Court found that the creation of this body sought to strengthen the independence of the judiciary as a constitutional guarantee and aimed to partially depoliticize the method of selection of judges. Clearly, the new law would have contradicted these goals.

In line with the Court’s decision, the new law would have also undermined international human rights provisions that protect the right to effective legal protection (tutela judicial efectiva). This concept includes as a fundamental right of all people 'that of an independent and impartial tribunal', under Article 8.1. of the American Convention on Human Rights (ACHR) and Art. 14.1 of the International Covenant on Civil and Political Rights (UN). This independence and impartiality would be threatened if the ruling party controls the selection and prosecution of judges. These treaties, to which Argentina is a signatory, have constitutional status pursuant to Article 75, 22 of the Argentine Constitution after the 1994 amendment.

Finally, President de Kirchner’s new law would also have infringed basic principles of judicial independence set forth in the Charter of the United Nations. These basic principles state that: "... the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country" and that "is the duty of all government institutions to respect and observe the independence of the judiciary" (Principle 1). Also, the principles state "Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or have qualifications in law ... and that any method of judicial selection shall safeguard against judicial appointments for improper motives" (Principle 10). Argentina has been a member of the United Nations since 1945.


2) Precautionary measures in which the State or its decentralized entities are parties: Before the reform was enacted, the rules on precautionary measures applied to all kinds of relationships, to those between individuals and between individuals and the State (Chapter III of the Civil and Commercial Procedure Code). Now, invoking the protection of the public interest, this new law 26,854 creates a special and discriminatory treatment for cases in which the state or any of its subordinate agencies is a party.

In the seven pages that support this reform, the government seemed to forget the importance of those "most precious aspects such as freedom, family relationships, wealth, work, etc. ' that it had previously referred to in other pages used to support the Judicial Council reform.

Specifically, the new law imposes greater requirements to request a precautionary measure against the State. It also: requires the service of the order to the respondent public authority contrary to the inaudita pars nature of this measure; includes the possibility of intervention by the Public Ministry, which would lengthen the process that is characterized by the urgency required in the decision to accept or reject the measure; it establishes a three or six month limit period to the validity of the precautionary measure, depending on the type of proceeding, also contrary to the nature of these measures; establishes a discrimination between enumerated rights, such as the right to life, health or environmental rules, which are not subject to the limit laid down in Article 4; increases the requirements to apply for the suspension of a state act through a precautionary measure; and when the State appeals the grant of a precautionary measure to a party, that appeal has suspending effect, thereby neutralizing the measure and allowing the State to enforce its decision as if the injunction had not existed (Article 13, Paragraph 3).

The new legislation puts the citizen in a situation of lack of protection against an overprotected State accentuating the inequality usually found between the two parties. It also excludes some rights, like the right to property, from the precautionary procedure against the state. Furthermore, it violates the right of a fair trial provided for in art. 18 of the Constitution and the right to effective legal protection mentioned above. This right also includes the right to petition and obtain interim protection in order not for the fundamental right that seeks recognition to become illusory against acts of authority. Such recognition is enshrined not only in art. 43 of the Argentine Constitution but also in various international treaties with constitutional status, such as Article XVIII of the American Declaration of Rights and Duties of Man (Bogotá, 1948), in Article 25 of the American Convention on Human Rights and Articles 2.3 and 14 of the International Covenant on Civil and Political Rights, 1966.

3) Creation of three new federal courts of cassation: The Law 26,853 that was enacted on May 9,2013 created three courts of cassation on civil and commercial, administrative and labor and social security matters. In practice, these courts would act as intermediate courts between the Courts of Appeal and the Supreme Court. According to the reform, the access to the courts of cassation will be through the filing of three different types of appeals: appeal for violations of procedural law (recurso de casacion), appeal on the grounds of unconstitutionality (recurso de inconstitucionalidad) and petition for review (recurso de revision) against the judgments of the Federal Chamber of Appeals throughout the country.

Argentina, like the United States, adopted a federal system of government. Its power is distributed between the federal government and governments in the provinces. These provincial governments maintain all the power that is not delegated to the federal government, including the organization of the judicial, legislative and executive branches.

The Constitution and several subsequent laws have established the organization of the judiciary. There is a dual judicial system in the country: National Justice, and Local Ordinary Justice. National Justice has jurisdiction throughout the country on issues under Article 116 of the Constitution (federal subject matter jurisdiction) and other issues especially under the jurisdiction of the federal court. is Local Ordinary Justice in the provincial courts, which deals with the most common kinds of cases.

The National Justice system is composed of the Supreme Court, federal and ordinary courts.  Within the National Justice system there are courts with jurisdiction (i) throughout the country such as the National Court of Criminal Cassation, Federal Court of Social Security, National Electoral Justice; (ii) over federal matters such as the Economic Criminal Law Courts, the Federal Civil and Commercial Courts, the Federal Administrative Courts and the Federal Criminal Courts; and (iii) over ordinary or local matters such as the Civil, Commercial, Criminal and Labor courts.  These Courts are located in the City of Buenos Aires, better known as the Federal Capital. Meanwhile, the typical structure of the Argentine justice consists of two instances - court of first instance and courts of appeal, and the Supreme Court of Justice, when there is a federal issue or an issue of arbitrariness involved.

The reasons stated for this particular reform bill have very little if anything to do with the democratization process. While the reform apparently aims at fighting the 'backlog of the courts', it is hard to understand how that goal could be achieved by adding another instance that would certainly not speed up the procedure. In addition to this, though the right to appeal was invoked as a means to assure an effective remedy and the due process, it is also known that an effective remedy also involves a reasonable timely process. Adding another instance to the proceedings will definitely lengthen the process unreasonably.

On the other hand, these new courts will reduce the power of the Supreme Court of Justice to hear matters related to constitutional rights and guarantees. The Supreme Court of Justice will also be reduced from seven to five justices.

The selection process also deserves criticism. The new courts will be composed of judges appointed under the current rules and until the appointments are made these courts will be composed of 'surrogates judges or associate judges. This means that the new courts will be made up of judges selected from a list previously drawn up by the Executive with the Senate.

Another criticism to the law 26,853 is that it would not apply to new cases but also to pending cases (art. 15). This situation would seemingly violate the due process clause of Article 18 of the Argentine Constitution. This provision includes the prohibition against trial by special commissions or removal of a case from the jurisdiction of judges designated by law to hear the case. The principle is recognized in international conventions on human rights to which Argentina is a party.

To conclude, the Supreme Court decision has been one among several rulings on the judicial reform that have been recently issued by other courts. Although these decisions are seen as a successful curb to the affronts to the independence of the judiciary and to the protection of constitutional rights, the battle between President de Kirchner’s administration and the Constitutional order is believed to have just started. Hopefully new decisions will continue the trend of striking down these so-called reforms and restoring the constitutional order meant to be violated by this unconstitutional legislation.

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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