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Cristina Kirchner’s prosecution reform bid could struggle

President's candidate for AG opposes VPs' proposal to lower nomination threshold

By | [email protected] | December 4, 2020 8:42am


While the country mourned the death of football star Diego Maradona, the Kirchnerite-dominated Senate passed a reform it has very much been looking for: a new set of rules to nominate and remove attorney generals and prosecutors.

But just like it happened with the judicial reform bill, it seems like comfortably making it through the Senate is not a guarantee for success. The House of Representatives is a very different story. The judicial reform lost momentum after centrist, provincial, and hard-left lawmakers vowed to vote against it in the House, and according to the latest vote-tallying efforts, the same might now be happening to the public prosecution bill.

Among other things, the prosecution reform looked to lower the threshold needed to nominate a new Attorney General (AG): from two thirds of the Senate to just half plus one of the upper chamber – a change that would give Vice President Cristina Fernández de Kirchner, who not only presides over the Senate but also has a massive influence over the Peronist majority in it, the power to nominate an AG of her liking.

This would allow Fernández de Kirchner to gain influence over many prominent judicial cases, including those against her and her circle, but the former president seems to be hitting a wall in each of her attempts to do so. Among those opposing the latest reform bill is President Alberto Fernández’s candidate for Attorney General, Daniel Rafecas, who has publicly vowed not to accept the position it the current two thirds Senate confirmation requirement is lowered to a simple half-plus-one majority.

Two competing bills

We are currently at a weird standstill.

The bill to appoint Rafecas as AG is being blocked by the Senate (where it needs two thirds to pass), while the bill to change AG appointment rules is struggling in the House (where the government can’t seem to find allies to reach a simple majority).

The opposition was blocking Rafecas’ appointment in the Senate – one third of the seats are enough to do so. But the Vice President, who has had disagreements with Rafecas in the past and would likely prefer a less centrist AG, might be forcing them to pick their poison. If they don’t accept a centrist such as Rafecas as the nominee, they might get someone they like even less – Peronism might eventually reach an agreement with a few provincial lawmakers and similar small caucuses in the House, and reform the AG appointment process to make it by simple Senate majority.

If Rafecas remains true to his word, such a reform could force him to step down from the nomination. “If the two thirds requirement is eliminated, then I won’t be willing to accept the position,” Rafecas told opposition-friendly newspaper La Nación in October. “Even if the bill eliminates the current lifetime tenure for AGs, I think the special two thirds majority should not change,” Rafecas added.

President Fernández, standing right in between his VP and his AG nominee, has praised Rafecas’ history as a judge repeatedly, but has also suggested he is being too “principled” in his refusal to accept the nomination if it comes after a change in rules.

“I’ve known Daniel for many years and he is a principled man, but this isn’t a matter of principles, it’s a practical issue. The opposition is blocking the appointment of a position as crucial as Attorney General. It has been empty since (Mauricio) Macri’s government forced (former AG Alejandra) Gils Carbó to resign in 2017,” Fernández said recently.

Three-dimensional chess

Rafecas could lose some of the goodwill he has gained from opposition sectors if he walked back on his promise, so he might feel forced to decline his nomination of Cristina Kirchner’s reform passes.

But if that ended up being the case, the terrain would now be cleared for the VP to choose someone much more to her liking, as Rafecas would be out of the race and the opposition would be unable to block her, given that she can certainly secure a half-plus-one majority in the Senate.

This had led some in the opposition to reconsider the possibility of accepting Rafecas’ nomination. The most notable case has been Elisa Carrió, the leader of one of the most anti-Kirchnerite forces within the Juntos por el Cambio opposition coalition.

Carrió has argued that Rafecas is a “democratic man”, better than an alternative scenario in which Cristina Kirchner simply changes the rules and uses her control over half the Senate to pick a “fanatic”, “like in Maduro’s Venezuela”, who she thinks would have no qualms about “putting journalists or opposition leaders in jail”.

Yesterday, Carrió said she was confident in her ability to convince the rest of the opposition to vote for Rafecas. And she went on to add that, even if Cristina Kirchner’s allies manage to pass the prosecution reform bill through the House and change the AG nomination rules, the opposition would have to stand firm and continue to back Rafecas. If they ensure he gets the two thirds, he can still be sworn in without walking back on his promise even if the law is changed, Carrió argued.

“President Fernández will have to show his authority, and prove that the VP can’t walk all over him. He will have to sustain Rafecas’ nomination (even if the rules change). And the opposition will give him the two thirds. Our strategy has a Plan A and a Plan B. The only way Rafecas doesn’t end up as the AG is if the President bows down to the Kirchnerite hardliners and accepts picking a fanatic instead,” Carrió told La Nación+ yesterday.

A quiet winner

For the moment, however, the stalemate continues.

Peronists do not have a majority in the House of Representatives, and always need to negotiate with other caucuses to pass any bills. In addition, the House is not under such close control from Vice President Cristina Kirchner. Speaker of the House Sergio Massa is not as enthusiastic as his Kirchnerite allies within the ruling Frente de Todos coalition about their bills looking to reform the country’s courts, and he might also be looking to talk through a broader agreement with the opposition on the issue.

The VPs’ allies will continue to argue that the current prosecution law needs reforming, among other things, due to the fact that giving AGs a lifetime tenure (unless they resign or are impeached) is not a really republican thing to do. They will also cite that some in the Juntos por el Cambio coalition tried a similar reform during Macri’s presidency, in order to push forward the ultimately unsuccessful nomination of Inés Weinberg de Roca. And they will continue to argue that the position cannot remain indefinitely empty.

But for now, Interim AG Eduardo Casal, a sworn enemy in the eyes of the VP, continues being the quiet winner.