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OP-ED | 03-08-2019 09:11

Judicial system ripe for overhaul

With one side having a hidden agenda of impunity from corruption, while the other views crime-fighting from the standpoint of the police precinct rather than the courtroom, a serious modernisation of the judicial system is an orphan of this campaign but remains an urgent need.

With the government still far from being able to base its campaign on an ailing economy (even with greater stability in the second quarter of this year than in the first), the defence of republican institutions against a populist comeback has frequently been presented as the real choice for voters. While institutional issues always seem abstract when compared to bread-andbutter problems, the opposition has obligingly lent substance to this platform – within hours of his surprise anointment as a presidential candidate late in May, Alberto Fernández was virtually saying out loud that all corruption trials against his new running-mate Cristina Fernández de Kirchner and most of her cohorts should be scrapped, while in the same direction former Supreme Court justice Eugenio Zaffaroni was urging a drastic reform of the Judiciary which could be interpreted as being tantamount to its elimination.

Such proposals are naturally repudiated as being blatantly unconstitutional but another prominent plank in the government’s platform might well unwillingly lead it to urge judicial reform likewise. Until President Mauricio Macri so unexpectedly picked Peronist Senator Miguel Angel Pichetto as his running-mate, Security Minister Patricia Bullrich was a frontrunner to be his vicepresidential candidate in order to give pride of place to crime-fighting as an effective vote-catcher – while this is not Pichetto’s main function (which lies more in appeal to moderate Peronism and provincial governors), his past statements on this subject with their heavily xenophobic overtones certainly lend themselves to this purpose.

Yet the day is fast approaching when law and order politicians need to graduate beyond rhetoric and stiff penal legislation to serious judicial reform. In the last three decades (perhaps starting in 1990 with the kidnap-murder of Guillermo Ibáñez, son of the trade unionist and later Lower House Majority Leader Diego Ibáñez) there has been a cycle of a crime coming along every few years which provokes so much public indignation that it rouses Congress into a frenzy of stern legislation stiffening punishment. And what happened each time? If and when the criminals are apprehended, it takes forever to bring them to trial, a stage which then drags on endlessly until finally there is a sentence read out in full several weeks later, and then there comes the seemingly endless round of appeals – this is all due to a cumbersome judicial system. Should there be a crime outraging public opinion in these weeks, neither rhetoric nor legislation from a dormant Congress (due both to campaigning politicians and to a government averse to exposing its minority position) might suffice – the government might then feel obliged to embrace the cause of judicial reform for entirely different reasons.

This does not just apply to common crimes either. Looking at the Kirchnerite corruption trials, Fernández de Kirchner is widely considered as being spared a faster prosecution in order to sustain a polarisation favourable to the government but while her parliamentary immunity does indeed complicate matters, the fact remains that her trials are not much slower than anybody else’s. Such a blatant corruption case as exofficial José López only received sentence three Junes after he tossed US$9 million over a convent wall. The Jujuy social activist Milagro Sala is widely defended both at home and abroad as a political prisoner but even those who consider her a thug deserving all the punishment coming her way should deplore the fact that well over 40 months since her arrest most of the numerous trials against her have barely started. Police brutality and vigilante justice are both unacceptable evils but they risk enjoying more public tolerance if the established legal system cannot deliver justice.

With one side having a hidden agenda of impunity from corruption while the other views crime-fighting from the standpoint of the police precinct rather than the courtroom, a serious modernisation of the judicial system is an orphan of this campaign but remains an urgent need. Something like the Napoleonic Code, which has stood the test of time over two centuries, would be one model. That took four years to produce – today it might require less time with modern technology or more with the vastly increased complexity of the law – but something on that comprehensive scale is needed rather than spasmodic legislative flurries.

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