Amid sharp criticism from the opposition, President Alberto Fernández announced Wednesday that he would send a bill to Congress to reform the federal justice system.
Declaring that the move would help Argentina’s much-maligned Judiciary regain “credibility,” the Peronist leader said his government would seek to merge the federal judges for criminal and corporate law while also increasing their number, thus diluting the power of the current 12 benches in the Comodoro Py federal courthouse.
He also anticipated implementing a system placing investigation in the hands of prosecutors, a move which had been previously approved by lawmakers but was interrupted by the Mauricio Macri presidency.
The Senate received the bill on Friday, which will begin to debate it in the coming days. The government’s Frente de Todos coalition has a majority in the upper chamber, though it is expected to face resistance in the lower house Chamber of Deputies.
At the speech delivered at the Casa Rosada on Wednesday, the president said the judicial reform bill, which is to enter the Senate, would speed up trials and ensure the Judiciary remains independent from the Executive.
“I only seek to have the Republic that everyone declares, but that some have humiliated,” said Fernández.
As the president spoke, he was flanked by some of his ministers and the legal experts who will make up a new commission tasked with analysing possible changes to the Supreme Court and the Council of Magistrates – a move many analysts said was the first step in a move to expand the number of justices that sit on the Supreme Court. The government says there is no pre-planned intention to do so.
The nation’s highest court was represented solely by Justice Elena Highton de Nolasco but there were other notable absences, especially on the part of the opposition, which said prior to the announcement that it rejected the judicial reform bill and any expansion of the Supreme Court.
‘In function of the political climate’
Fernández, a professor of criminal law at the University of Buenos Aires (UBA), said that the government’s bill proposes to create 23 new courts and is aimed at ending a system of justice which acts "in function of the political climate."
"In this way we seek to overcome decision-making being concentrated into a reduced number of magistrates, who have the capacity to decide almost all cases of institutional and hence media relevance," he argued.
Argentina’s justice system has long been accused of pro-government bias, with critics charging that the courts tend to protect those in power and prosecute those in opposition.
Fernández, who took office last December, vowed to overhaul the justice system in his inauguration speech. Those plans were delayed, in part, due to the coronavirus pandemic.
"There’s a manipulation of trial times which speeds or slows them in function of the reigning political climate or what is denominated pendular justice," said the president, affirming that during the 2015-2019 Macri administration "judges who showed independence were questioned on a daily basis while arbitrary trials gained ground at the expense of norms."
Macri’s four years in office "were marked by measures that affected the rules of impartiality," charged Fernández.
As examples, the president cited how his predecessor had suspended, by decree, the implementation of a federal penal code approved by lawmakers during Fernández de Kirchner’s time in office (2007-2015) and noted that the AFI federal intelligence agency had been allowed to manage a secret slush fund with no oversight on the funds. He said the agency was under “a cloud of suspicion” – in recent months, revelations of illegal espionage carried out by AFI agents during the Macri era have emerged in the press, with those claims now under investigation by the courts.
"As the days went by, judicial transparency was lost," said the Peronist leader. "Procedural arbitrariness was gaining ground at the expense of the most elementary norms that guarantee due process."
"Without independence there is no Republic nor democracy," declared Fernández.
Along these lines the Frente de Todos leader criticised the practice of remanding defendants in custody as "a system of anticipated convictions … violating the principle of innocent until proven guilty."
‘Rethinking the working’
Fernández also previewed the Consultative Council “composed of 11 indisputably recognised legal experts,” which will have the "task of rethinking the working of the judicial branch … and making concrete proposals to improve the administration of justice."
Each one of the 23 existing courts for criminal and corporate law will continue with one of its current two court secretaries while the other secretary will serve the 23 new courts for a total of 46. Until the Council of Magistrates and the Senate has approved the new judges, there will be a system of transitory surrogates seeking "maximum transparency" who will have to pass through the same filters.
The bill also proposes the unification of appeals courts and the creation of courts for oral trials with both prosecuting and defence attorneys, who will be retooled accordingly.
The reform also seeks to transfer to Buenos Aires City the jurisdiction to investigate and judge all non-federal crimes committed in its territory, thus completing the transfer of jurisdiction. The bill will unite federal civil and commercial law with administrative litigation, thus strengthening federal justice in the interior, Fernández said, concluding by saying that the bill incorporated the previous government’s “Justicia 2020” programme presented in the Senate.
No ongoing trials would be altered and they will remain under the jurisdiction of the judges currently in charge, vowed Fernández. New guidelines for judges would also be introduced, he added.
The Consultative Council
Here are the main points of the bill to create a Consultative Council, which is aimed at "rethinking the working of the Judicial Branch and the Prosecutor’s Office."
- The Council will start work on August 18, 2020, and must carry out the functions specified by decree within a period of 90 days.
- Council members will work for free and the Justice and Human Rights Ministry will cover any necessary transport and accommodation expenses.
- The Council will provide the Executive Branch a report detailing its proposals and recommendations on different judicial matters, such as the problems observed in the correct functioning of the Supreme Court, the Council of Magistrates and the Offices of both prosecuting and defence attorneys.
- Regarding the Supreme Court, a functional analysis will be carried out which covers the selection of its members according to the criteria of the diversity of gender and federal representation, among others.
- For the Council of Magistrates, likewise a functional analysis which includes the convenience or not of modifying its structure and composition as well as harmonising its work with the Supreme Court.
- Regarding the Prosecutor’s Office, likewise a functional analysis which includes the convenience or not of modifying the current legal scheme for appointing its heads and the possibility of its terms being temporary.
- Regarding the system of trial by jury, an analysis of the criteria for its most efficient and constitutional implementation.
- The Commission will analyse and evaluate the way of finalising the transfer of jurisdiction over non-federal crimes to Buenos Aires City.
- The Consultative Council’s report will be adopted by a majority of its members and will include the dissenting recommendations which any of its members wishes to present.