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Is Alberto Fernández looking to reform the Supreme Court?

The presentation of the much-awaited judicial reform came with a surprise twist

By | [email protected] | July 30, 2020 4:46pm


After a few months of delay due to the COVID-19 crisis, President Alberto Fernández finally announced the launch of his much-anticipated judicial reform bill yesterday, but the news came with a twist, as it could also open the door to potential changes in the Supreme Court, contrary to Fernández’s campaign promises.

The Supreme Court will not be the direct focus of the bill, which will mostly address the highly questioned Federal criminal courthouses, creating new positions that will dilute the power currently concentrated on a few courts that have been at the heart of dozens of scandals over the last decades. But in combination with the bill, the President also announced a decree creating a special advisory committee where 11 law specialists will be tasked with recommending additional reforms, with the composition of the highest tribunal among the issues they will study, among other structural elements of Argentina’s judiciary.

The creation of the committee sparked strong reactions across the opposition and within the Supreme Court itself, opening a conflict which could shape Argentina’s future political landscape amidst the backdrop of a worsening social and economic crisis.

A history of reforms

As Fernández himself acknowledged in his presentation yesterday, the country has a long history of political intervention and reforms over the judiciary. Apart from the obvious examples of the dictatorships, the President mentioned “the expansion of the amount of Supreme Court justices in the 1990s, which gave way to the creation of an automatic majority allied with the powers that be”.

Many of the nine justices of former president Carlos Menem’s Supreme Court were impeached or forced to quit during the early days of the Kirchnerite decade, which saw an almost complete renewal of the highest tribunal that was broadly praised even within the opposition. But eventually the relationship between the Kirchnerite government and the courts soured, with the peak of the conflict coming after Cristina Kirchner’s attempt to reform the procedure to nominate and remove judges in 2013 was struck down by the supreme tribunal, who declared it unconstitutional.

Alberto Fernández, then a rival of his current Vice President, was a staunch critic of her attempt back in 2013. But the current announcement has all the signs of an agreement between the two. While a majority of the elements within the reform were developed by some of the President’s closest advisors, like Vilma Ibarra and Gustavo Béliz (both with a history of clashes with the Kirchners), the fight between the Vice President and the Supreme Court over the review of evidence in a public works corruption case has made Cristina Kirchner increasingly interested in the role of the country’s highest tribunal.

Negotiating approval

But there’s still a long way to go before any reform of the Supreme Court could be materialized. The advisory committee created by Fernández will have 90 days of deliberation before making any policy recommendations, so a new round of judicial reform bills that directly affects the Supreme Court would likely need to wait until 2021, an election year amid very unstable socioeconomic conditions, which could throw all kinds of wrenches in the process.

The ruling Frente de Todos coalition would first need to secure half plus one of both chambers to pass the bill presented yesterday, and do the same afterwards with any bills stemming from the committee’s conclusions. If the committee ends up recommending a new format for the highest tribunal (such as dividing it in multiple specialized but smaller courts, with a higher amount of total members), and that recommendation is turned into law, any new justices would still need to be approved by two thirds of the Senate, a figure that Senate head Cristina Kirchner does not seem to have at present, forcing the government to negotiate some kind of deal with the opposition.

The bill presented yesterday, however, could have just enough backing to pass, with Peronism comfortably controlling the Senate and having already secured the support of some independent and provincial lawmakers from the House of Representatives, where Fernández does not hold a majority of his own.

Keys of the bill

If passed, the main consequence of the reform would be the massive expansion of the Buenos Aires City Federal Criminal courts, whose nine judges currently hold most of the country’s high-profile politics and corruption cases (and have multiple accusations of corruption themselves), by merging them with other courts and adding new seats, to reach a total of 46 courts instead.

The bill would also create around a hundred new Federal courts across the country, an idea originally espoused by Macri’s administration, which would likely serve as a bargaining chip to secure the support of governors. It would also address a series of persistent jurisdictional conflicts between courts that have led to constant instances of forum shopping, and transfer non-Federal crimes from the city’s Federal courts to its ordinary tribunals.

The need for a victory

Since the day of his inauguration, Fernández has taken on a few big political battles. For the first three months, the focus was on the re-negotiation of the country’s debt, which continues until today, although the focus moved on since March to the fight against the COVID-19 pandemic.

The rapid response to the virus with a nation-wide lockdown yielded quick results both in terms of public health and political approval, but its effectiveness in both areas wore down somewhat during the last few months. The attempt to nationalize broke grain-exporting firm Vicentin last month was partly a bid to add new elements to the country’s political agenda, but blew up in the government’s face after leading to massive protests and division within the elements of the ruling coalition.

A successful reform of the highly-questioned Comodoro Py Federal courthouses could come as a timely political victory, but adding the Supreme Court to the combo has put most in the opposition (some of which were likely to be receptive to a reform of the Federal courts alone) in high alert, and even led to a small public protest yesterday after Fernández’s address, so more divisiveness should be expected as the bill progresses.