While it may seem unlikely, this week the political battlefield moved to the Judicial branch.
But just as in the US there are judges that are considered to be conservative or liberal, in Argentina it is no strange to hear judges being aligned with a political ideology. And yesterday the government, through its representatives in the Council of Magistrates — the Judiciary’s body in charge of appointing and removing judges — managed to approve an impeachment process and consequently suspend a Federal Court of Appeals judge they consider to be a Kirchnerite, Eduardo Freiler.
The decision caused a great deal of controversy between the Kirchnerite Victory Front (FpV) party and the Cambiemos alliance. Not just because the FpV defends Freiler’s impartiality, but mostly because Cambiemos only managed to get away with it by seizing a brief window of opportunity when the FpV’s members were not all present in the Council. Should this had been the case, they would have been able to block the initiative, as they have been throughout the year.
But before analyzing the consequences of yesterday’s events and understanding why the government considers this to be a first step towards fighting corruption, let’s go back to the beginning of the story to take a look at who Freiler is and why the Council of Magistrates is such an important organization for Argentine politics.
WHO IS EDUARDO FREILER AND WHAT HAS HE BEEN ACCUSED OF?
Eduardo Freiler is a member of the First Federal Court of Appeals, meaning he holds one of the most important seats in the Judiciary. Along with his colleagues, he is in charge of reviewing and ruling over the most high-profile cases in Argentine politics. Late Prosecutor Alberto Nisman’s famous accusation against former President Cristina Fernández de Kirchner in 2015? It landed on his desk. That’s how important he is.
In certain cases, Freiler has ruled in ways his detractors argue respond to his close ties with the Kirchner camp. Chief among them was his refusal to investigate Nisman’s accusation, who had argued that the former President, along with other high-ranking officials, had contributed to cover up Iran’s role in the 1994 AMIA Jewish Center bombing in exchange for trade deals. The Cassation Court, the highest criminal court in the country, ultimately overturned Freiler’s court decision and determined that the accusation be investigated.
Cambiemos’ representatives consider him partial and corrupt, and have tried repeatedly to have him removed throughout the year. However, instead of making a direct accusation, they have resorted to a strategy akin to the one the IRS in the US put in place in order to put Al Capone behind bars: they went after his assets. In their accusation, government representatives argue that Freiler should be impeached for five different reasons:
- He lied in his tax returns. Among the irregularities they claim to have found, he omitted mentioning he owns five quad-bikes, seven plots of land in the coastal city of Necochea and a jet-ski. He later came clean on this last one, but said it’s worth less than AR$ 15,000, when he actually had to add another zero and a couple extra thousands to that number.
- They argue he has an improper behavior for a judge because owes roughly AR$ 330,000 to the AFIP tax collecting agency.
- A report determined that his expenses are not consistent with the assets he claims to have: it concluded that between 2012 and 2016, he spent AR$ 6 million more than what he made. Another report claims this figure is as high as AR$ 17 million.
- He lied in order to get time off work but continues to be fully paid.
- He was also accused of skipping work without a proper reason during judicial business days “in a grave and reiterated manner.” To back up this claim, representatives showed a report from the migrations office proving that “the judge left the country and the court, without justification, during at least 33 judicial business days since 2008.”
However, all attempts to remove him proved unfruitful in the past. Government representatives didn’t have the necessary votes in the Council of Magistrates in order to take him out until now.
WAIT. WHAT IS THE COUNCIL OF MAGISTRATES?
The Council is a very important organization because it has the ability to nominate candidates to national and federal judge positions (who must then be approved or rejected by the President, along with the Senate’s approval) and it is also in charge of administrating the Judicial branch, controlling judges’ activities, imposing sanctions when judge’s have done something wrong and, most importantly, initiating the impeachment process to remove judges from their posts. In this last case, the Council acts as the prosecution before the jury that will later issue the sentence.
Article 114 of the Constitution states that there must be 13 members in the Council and that it must be composed of people representing the political, academic and professional sectors. Here’s the breakdown:
- 3 national judges, chosen by their peers. (Judicial branch representatives)
- 3 senators, two of whom are from the party that has the most deputies in the Upper House, and one from the party with the second-most deputies. (Legislative Power representatives)
- 3 deputies. Same distribution as the senators. (Legislative Power representatives)
- 2 lawyers, chosen by their peers. (Federal lawyers’ representatives)
- A member designated by the executive branch.
- A representative from academia, designated by the National Inter-University Council
The Cambiemos camp got close to reaching its goal in June. With eight of the nine required votes to begin the impeachment process, they seemed to have convinced council member Jorge Candis, who usually voted along the FpV’s lines, to switch sides.
Although all indicators pointed at him providing the key vote, he finally left Cambiemos at the altar. “There was a rush to accuse him (…) in this conditions, my vote will be negative,” he said.
Cambiemos had to suspend the voting and its initiatives indefinitely, until yesterday.
OK, SO WHAT HAPPENED YESTERDAY THEN?
The key event that allowed government representatives to achieve their goal didn’t actually happen yesterday, but the day before, when the judiciary confirmed a decision to remove FpV Senator Ruperto Godoy from the Council because he was occupying a seat that was destined to a lawyer, even though he wasn’t one.
The FpV caucus rushed to appoint Senator Mario Pais as his replacement, aware this could happen. But they weren’t fast enough. While Pais waited to be sworn in by the Supreme Court, the Cambiemos caucus held an impromptu session and, since it needed eight votes instead of nine to approve the initiative, it quickly reached its goal.
The session was highly controversial, with the members of the Kirchnerite caucus accusing their counterparts of operating within a legal loophole in order to reach their objective, and the Supreme Court of aiding them to do so. Council member Rodolfo Tailhade argued that Supreme Court President Ricardo Lorenzetti purportedly took a long time to swear him in to allow the government to hold the session: Pais got to the Court’s offices at 9 AM, but Lorenzetti told him the members first had to attend a hearing about another subject, and met with him only three hours later. In the meantime, Freiler was suspended and consequently prevented from issuing another ruling until it’s determined whether he can keep his job.
President Mauricio Macri himself came out to celebrate the news shortly after, arguing that “Freiler’s suspension is a step forward to an Argentina with security and no impunity.” In contrast, Freiler said that “what he [Macri] wants to do is discipline the judges, and he has followed through. He’s showing that the judges who don’t rule like he wants them to ought to be removed.”
This promises to be the first of many resounding cases of the kind. According to Clarín, the government now intends to spearhead the removal of three other federal judges who they consider hinder investigations of alleged corruption, in what they claim is an initiative to get the Judiciary to be really independent, unlike now.
The public opinion, regardless of their political leaning, seem to agree. Every time a politician is accused of corruption, they and their supporters and detractors react in one way or another depending on what judge is randomly selected to investigate the case. Former President Cristina Fernández de Kirchner has said many things about Judge Claudio Bonadio. Not a single nice one. On the other side, Daniel Rafecas is considered a Kirchnerite for ruling that there was not enough evidence to investigate Nisman’s accusation against Cristina.
Right now, it seems unlikely that the Argentine society will regain its trust in this institution any time soon.