Demonstrators against the judicial reforms outside a court in Buenos Aires
Demonstrators against the judicial reforms outside a court in Buenos Aires © Ronaldo Schemidt/AFP via Getty

When Argentina’s then president Cristina Fernández de Kirchner tried to reform the country’s judiciary in 2013, her former cabinet chief Alberto Fernández lambasted the move as a blatant attempt to strengthen political control over the courts.

“Tell me who benefits from the crime and I’ll tell you who the murderer is,” Mr Fernández said during a withering takedown of the ultimately unsuccessful proposal. The main beneficiary, he argued, would be the president herself, since she faced a series of corruption charges.

Now Mr Fernández is president and is renewing attempts to reform Argentina’s dysfunctional and politicised justice system. But although it is widely accepted that change is urgently needed, he is facing similar criticisms. 

The move comes as Mr Fernández faces growing criticisms of his handling of the economy and the pandemic, as more and more companies choose to exit the country amid mounting uncertainty.

The government says the reforms are intended to make the justice system more efficient and transparent. But opponents claim the former lawyer is trying to protect Ms Fernández de Kirchner, the country’s powerful vice-president. Many say she is the real power behind the government after she picked Mr Fernández to run in her place in presidential elections last year.

The first stage of the proposed reforms has already been approved by the Senate, although the bill faces a rough and uncertain passage through the lower house of congress, where the government does not command a majority. 

Opposition members say the legislation is aimed at diluting the power of judges charged with investigating corruption cases involving members of the ruling coalition.

According to Synopsis, a local pollster, 60 per cent of Argentines think judicial reform is aimed at controlling the justice system for the government’s own purposes, while less than 5 per cent of the population see it as an urgent reform.

But Marcela Losardo, justice minister, rejected the claims as misguided.

“A phantom has been created,” she told the Financial Times. “There is not a single article of the reform that guarantees impunity for anyone.”

President Alberto Fernández gestures while announcing judiciary reforms © Argentinian Presidency/AFP

All judges would keep their cases, she said, adding: “This is not a project [designed to benefit] the government . . . and if they say the reform doesn’t work, well let’s debate it, let’s modify it.”

According to the government, the reforms aim to establish a more modern criminal justice system — in which prosecutors rather than judges investigate cases — and merge some obsolete jurisdictions into others. It will also increase the number of federal criminal courts to address notoriously lengthy delays and the concentration of power in the hands of a few judges. 

In addition, an expert advisory panel — which critics say is dominated by government supporters, including Ms Fernández de Kirchner’s lawyer — has been appointed to study issues such as expanding the Supreme Court. Mr Fernández has opposed such a move in the past, and opponents of the reforms argue it could benefit the ex-president if loyalists were appointed.

Another issue is the drive led by Ms Fernández de Kirchner to remove three judges presiding over cases involving her, even though the Supreme Court ruled in 2018 that their appointments were legitimate. This week, it agreed to review the issue again.

“The sole objective [of judicial reform] is the impunity of Cristina Fernández de Kirchner, her children and [former] government officials. It could hardly be clearer,” said Daniel Sabsay, a leading constitutional lawyer. 

If the government was serious about strengthening the rule of law it would move to depoliticise the system of appointing judges, a measure not included in the bill, he said, adding: “Of course the reform is not aimed at making [the judiciary] independent.”

Regardless of the merits of the proposals, many are concerned that the debate has become divisive in Argentina’s already deeply polarised political climate. That threatens to derail much-needed change. 

Andrés Malamud, an Argentine political scientist at the University of Lisbon, said it was “improbable but not impossible” that the law would be passed by congress, since its approval depended on a handful of centrist legislators “who are sensitive to the economic situation and public opinion” — neither of which favoured the government.

Argentina’s Supreme Court © Daniel Garcia/AFP

But the lack of national consensus over the government’s proposals means that even if congress approves them, “you can expect pushback in the short term and reversal in the medium term”. 

Judicial reform “is an initiative that doesn’t have anything to do with the priorities of public opinion while representing a political cost and a waste of energy for the government,” said Ignacio Labaqui, an analyst at Medley Global Advisors.

He expected the bill to remain stuck in the lower house for some time unless it gained more support. “No government is so suicidal as to push a key law to a vote that it [knows it] will lose.”

Should the government push ahead with the reforms and fail, or further erode public support, the ruling coalition’s competitiveness in midterm elections next year could be compromised.

“Much will depend on the state of the economy. If that goes well, then many will say they [did this] but at least they improved the economy. But if the economy goes badly, then this [reform] will probably make people even more angry,” said Lucas Romero at Synopsis.

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