Allow me to present the case for the prosecution: President Cristina Fernández de Kirchner has announced long-awaited reforms to the Criminal Code and one section deliberately discriminates against foreigners. Presenting the measures on Cadena Nacional recently, she outlined her two cents worth on what represents a plan to drastically overhaul the Criminal Procedural Code, a policy that had been discussed feverishly for months prior to the official unveiling. On probably the most controversial section, Article 35, which will allow for the immediate deportation of non-Argentines who commit a crime, she said that foreigners with any “irregularities” in their documentation who commit a crime “will be expelled from the country and not allowed to return.”

This bill (and likely Article 35 in particular) has made Cristina political bedfellows with her supposed arch-nemesis of the center-right PRO party’s Mauricio Macri- over the issue. A pretty bizarre match; yet made for at least the second time this year, after their happy union in May over building roads in the City. It’s so nice when they all get along, right?

Well, maybe not so much, according to multiple human rights groups at any rate. They have pointed out how the imprecise wording of Article 35 means that we still don’t know who- a judge or the police- decides whether the offending extranjero has all his or her “papers” in order, a pre-requisite for speedy deportation.

It’s all beginning to sound a bit like a 40’s war film in this sense.

The Center for Legal and Social Studies (CELS), one of many such groups, expressed concerns that the bill could therefore give an already notorious police force with a morally stained recent history excessive powers of influence.

They also raised the worrying idea that Cristina (and by implication, her administration) seemed to link immigration and crime in her speech. While a relatively high proportion of crimes in Argentina are committed by non-nationals, CELS legal department condemned the suggestion of a connection between rates of crime and immigration:

“There is no reason to say that. Statistics show that is not true”.

The disquieting atmosphere all this discourse raises can make it seem at times like the “fuera buitres!” momentum is being warped in ways not previously anticipated, leading the Government down a dead end that has them pointing the finger not just at alien vulture capitalists but increasingly, it seems, anyone without a national passport. The failed attempt to steal Federal prosecutor Carlos Stornelli’s car this Monday; that involved an uncanny, almost suspicious sense of political timing from the armed Colombian robbers responsible, seemed to enforce both this sentiment and the State’s determination to foster it.

During a press conference at the scene of the crime (after all the pesky shooting had died down of course) Security Secretary Sergio Berni magically appeared and quickly spun the incident as proof of the necessity of Article 35:

“The week has only just begun and we already have seven foreign criminals under arrest. But due to the characteristics of the crime I think that tonight they will already be free and in two months we will find them robbing again… We have to take away their passports and deport them…”

From more comfortable surroundings of various interviews that followed he added an even more odious footnote for good measure. No less than the following:

“We have an infection of foreign criminals”

Perhaps a level head, and at the very least restraint on such alarmist vitriol wouldn’t go amiss, Sergio? After all, the bill is much bigger and less polarizing than the somewhat sinister Article 35 would suggest. Rational debate about its broad scope and the issues it raises is stifled by using language like this, which pours fuel on the fire.

Let’s examine the relevant evidence a bit closer before we start either lynching the enemy within (Tucuman, right now) or, as foreigners, pack our bags and flee from the xenophobic overlords crouching in the Casa Rosada.

On the headline grabbing part, it is undeniable that by making provisions for the hasty expulsion of “foreigners” who are caught committing a crime, Article 35 of the reform bill (the whole of which is still yet to be voted on, remember) is discriminatory. It will mean one law for Argentines and another for everyone else in the country. So whether you’re a four-times-a-year Uruguay border hop kind of visitor living the life of perpetual tourism, or an expat who’s settled and worked here for decades, sipping mate as much as the next gaucho, you risk expulsion and a 15 year ban on re-entry for even petty offences.

But there is a case for the defense. Step forward a surprisingly friendly piece from often anti-Kirchnerite newspaper La Nacion. It speculated that, if the bill was active right now, the cases where the offending non-Argentine would actually be thrown out would be quite limited after a dissection of the small print.

According to a study about foreign criminality in Argentina echoed in the piece, the defendant must be here illegally (the “papers in order” bit) and will also be offered the choice of immediate detention in Argentina over expulsion if they’d prefer. The luxury of choice! Further, the specific clause actually says “may” be expelled, not “should” be. And if deportation would break up a family unit, it’s also off the table. So there are a bunch of criteria to be fulfilled before you’re shown the jackboot at the gates of BA’s Airport.

The Argentine Supreme Court. Image: Roblespepe via wikipedia.org, 31/12/2007

We also must look at the reform bill as a whole. The main thrust, lost among all the controversy, is to help speed up the bureaucratic lurch of criminal procedure in Argentina, which often sees cases drag on, year after year, with all the velocity of the Perito Moreno. Trying to coax more movement from this particular hulk, by giving judges penalties and risk of impeachment if they continually allow cases to drag on over a year, is a practical step in the right direction.

The fact that the reform will give Argentina a more democratic adversarial system over the current inquisitorial one is also a genuinely progressive step and the part most welcomed by many in the legal profession. As Cabinet Chief Jorge Capitanich pointed out when defending the bill in his usual, cumbersome way, Argentina is lagging behind the rest of the region with the old-fashioned inquisitorial system: where the supposedly benevolent State court actively gets involved in the investigation of the case. Under the new system, the government just provides the platform for justice, and lets the defense, prosecution, judge and jury get on with it independently.

All of this is positive, and it helps makes sense of why the Victory Front‘s defense of their Penal Code Reform has been so dogged. But none of it justifies the harm of the bill’s more dangerous sections. By empowering the police to gather evidence against suspected foreign criminals, and to potentially judge their documentation, Cristina and her administration are playing with fire and putting Argentina’s democratic credentials under strain. This is the same police force that were entirely in cahoots with the military during la Guerra Sucia, that took part in the killings and disappearances, that hasn’t really changed all that much since the darker days of the recent past.

It’s also the same organization that has a habit of singling out immigrants and non-nationals as a disproportionate cause of crime when, as invaluable Human Rights groups like CELS show us, this is nonsense. We called long-standing advocate of human rights and Buenos Aires Herald Editor in Chief Sebastian Lacunza as a witness, to clarify how the bill threatens liberties here in Argentina:

“The main problem, once again, is the Argentine police; supposed to catch criminals and gather evidence against them. In more than 30 years of democracy, no government led a much needed reform on security forces which had been deeply involved in illegal repression during the dictatorship”.

He added that “hundreds of police officers took part in killings, tortures and snatching babies. Even though many of them were judged and the Argentine society lives under the rule of the law, forces still work with unacceptable practices from a human rights perspective… So it’s no time to replace the procedural safeguards included in the judicial system by a tough-on-crime approach”.

Suddenly, we begin to understand why this bill has caused such furor among advocates of democratic justice, equality before the law and human rights. We see how, in a bid to counter all this unease, the Fernández de Kirchner administration has abandoned its usually firm ideological trench and joined with political and media industry conservatives of the Right in a bid to cultivate a growing sentiment of intolerance and disharmony among sections of the population. The narrowly avoided lynching’s in Tucuman last week show how dangerous playing on fears and anger like this can be.

Any defense of the new Code’s better elements are drowned out by a closing of the ranks around Article 35 and it’s undeniable whiff of xenophobia; by sensationalist voices like Berni’s, baying for blood.

The Code is still being debated on the Senate floor, and so this entire saga is an unfinished one. Unthinkable as it is for Cristina and the Victory Front, it’s still not too late for someone to propose at least a moderating amendment to Article 35, which could stem its discriminatory aspect and like this help sustain the noble record Kirchnerism can boast of in upholding fundamental rights and promoting equality.

Otherwise the New Criminal Procedural Code is guilty as charged.