By: 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.
International
Judicial Monitor