Mariano Cúneo Libarona, Argentina’s new justice minister, “collaborated with the ideologues” in drafting President Javier Milei’s controversial DNU emergency decree, which has revived the ‘cacerolazo’ saucepan-bashing protests of 2001.
Cúneo Libarona, 62, entered the judicial branch at a young age, in the 1990s, when he helped to inaugurate the era of media-driven lawyers, defending Diego Maradona’s former representative Guillermo Cóppola.
He went to jail for 32 days in the investigation of the 1994 terrorist car-bomb destruction of the AMIA Jewish community centre, before being acquitted. Now he has left his prestigious law office to dedicate himself to public life in a gesture of “patriotism,” reflecting on the radical changes needed to reconnect this country to the world.
What comparative law precedents inspired you to draft the Omnibus DNU (Decreto de Necesidad y Urgencia)?
In reality I collaborated with the ideologues and participated in a model which was not a copy of some foreign legal system but aimed towards a clearer regulatory system for the benefit of Argentines, suppressing senseless regulations, freeing up the market and competition and ending diverse improper practices of certain sectors while also seeking investment, which is what this country needs to bring in companies and create jobs, plenty of investment and jobs. That was an enormous task for the team in which I participated, dividing that work into two parts – the necessary and urgent now and the part needing less urgency and more debate passing to the upcoming Omnibus Law, which is a much fuller complex of norms.
The Supreme Court has a doctrine regarding DNUs which does not vary and is absolutely restrictive. What do you expect to happen when the DNU reaches the Supreme Court?
Supreme Court doctrine generally predates 1994, which is when the reformed Constitution enshrined this practice of all presidents since then of dictating DNU emergency decrees without any framework of norms for any number of circumstantial reasons. This is a genuine situation of need and emergency due to the economic crisis. To give you a simple example, football clubs, if their members accept [the legislation], it is because there are interests [at stake] with plenty of money wanting to come into Argentina from abroad to invest, thus saving the club to the benefit of its members and the economy while creating jobs, diminishing poverty and enhancing human dignity. Somebody who does not understand might ask: Why football? Because it IS urgent, because there does exist the possibility of major investments in a raw material which characterises us, the football players, clubs – that is the choice facing the latter. Racing [Club] does not need this since its statutes prohibit it from being anything but a civil association – I explain that because they always think that this was my invention – but other clubs do.
How much legal security do DNUs confer? If something can be approved this way, a future government could use that same method to amend it in the opposite direction.
If need and urgency exists and it falls within presidential prerogatives, a DNU is legitimate and valid. It has now been amplified in benefit of the common good without harm to anybody but on the contrary, future benefit so it is legitimate, as established by the Constitution. So I’m not at all worried. Later it will be reviewed by the judicial and legislative branches and, within some years, by the Supreme Court. Nobody issues a DNU emergency decree thinking maliciously: “I’m going to do something illegal, a DNU contrary to the Constitution, I’m going to invade the sphere of another branch of government,” no, quite the contrary. What is being sought here is an enormous change for Argentina, which beforehand always resorted to a different remedy and doctor and it did not work out. So we are trying to change the doctor and prescribe a new medicine with a broad and open economy and a smaller state with more utilitarian objectives which takes care of property, health and justice without absorbing so many roles and employing so many people in so many departments - an efficient state, which without any money has to create the mechanisms with great ingenuity whereby Argentina can get back on its feet and start to function again.
What do you understand by need and urgency? There seems to be some confusion between that and public emergency as stated by Article 76 of the Constitution, which can only come from Congress which defines the prerogatives and time limits for that emergency.
The emergency and need, [as President Javier] Milei says permanently, is the economic situation of the country. We are at risk and suffering disastrous economic conditions which go back a long way. So the need and urgency is the economic crisis.
I’d like to hear your own interpretation of the spirit of Article 76 of the Constitution, which sets limits on the delegated powers.
The point here is that this is not a delegated power – the Constitution itself, as reformed by the constituent assembly of 1994, establishes this as a prerogative proper to the Executive Branch. If that were not so, we would have had until now over 4,000 or even 5,000 illegitimate DNUs since 1994 – they’re an inveterate practice of the Executive Branch. What is happening, as I understand it, is a process of revolutionary change being undertaken by this government due to the crisis situation we are experiencing and with the best of aims: to benefit Argentina and society. What we have here is not a group of fossils with the whim of issuing illegitimate norms but a bunch of people trying to make this country grow.
And what would you reply to those who maintain that this DNU is an act of institutional violence as Article 36 of the Constitution typifies anything violating the duty of observing the supremacy of that Constitution?
Quite the contrary, here we have that spanner in the works blocking Argentina in action again. This is a legitimate decree in accordance with the Constitution with the prerogatives and scope conceded by that Constitution. In no way does it sanction institutional violence, that’s another totally absurd concept.
You mentioned your respect for the Federal Appeals Court judges who tried the dictatorship juntas. [Ricardo] Gil Lavedra states that if [the DNU] is approved, it would rupture the separation of powers and the republican scheme of government. How would you reply to Gil Lavedra?
Ricardo merits my greatest respect. He is working as the president of the Bar Association. He has the right to express his opinion like anybody else. We are very much inclined to respect the freedom of opinion but within that framework there is a confrontation of doctrines between what he and we maintain. I would dare him to debate who is right.We have chatted over this in private and I sustain the legitimacy of the decree.
Let’s go ahead with that debate then, it seems like a good idea to me. Now if the DNU is blocked by the Bicameral Commission in Congress, the President has anticipated that he would hold a plebiscite. Isn’t that the same problem because for the plebiscite to be binding, it would also need the approval of Congress?
The real point is: What do the people want? I read the newspapers and many constitutional lawyers support this. I see public opinion in the street with friends, colleagues, businessmen and ex-clients all supporting this – I believe it has the backing of society. Some sectors undoubtedly see themselves as harmed because certain practices are ended so obviously they complain, that was predictable.
So you’re optimistic that it will end up being approved.
I think so.
In Congress.
I would not venture an opinion about Congress so much because it is a world I do not know. What I do believe is that the judicial sphere is reasonable and its norms logical.
You have proposed a reform of the Penal Code lowering the age of criminal responsibility to 14. What would be the benefits?
The point is this: the world has changed. In Argentina penal law has been amended a great many times as far as the underaged are concerned. Today we have kids of 14 or 15 who are aware of the criminal nature of their actions and in consequence you see many extremely serious crimes, homicides, rapes, etc. committed by the underaged who are often manipulated by adults sending them out to rob houses or cars. So I believe that you have to accept the reality that today’s 14-year-old is not the same kid of that age as 50 years ago but it is of no use to me to punish the underaged by sending them to prison. It is of use to re-educate minors – that kid needs a chance. That’s why I say that the legal regime for the underaged should not only cover punishment but should also include a posterior stage, which is education. That kid should be given the tools to be reinserted into society as a decent person who can land a job and be at home in a sociable environment, furthering their education and training. Punishment is no use. It’s like a small child whom you smack but that’s not enough – you also have to tell them: “Look, from now on we’re going to do things this way, the other way does not suit you, my child, for the following reasons.” You have to bring kids up. For example, instead of being places where you re-educate, say, 200 kids, prisons have become overcrowded places into which you cram 350. That is no use, those kids come out worse than they entered. So if I do not solve the causes, I have to solve the effects, which is where those kids are going to go afterwards. I have to look after them by educating and training them.
Can you place the burden of the trial process on the prosecutors without more funding for them, as Salta and Jujuy did when they introduced that system?
It cost Salta and Jujuy a lot of money because they did not have the Internet. Yesterday we met up because this is a priority of mine and the government; we are looking for provinces with adequate means which do not have that drawback. So we found Mendoza and Santa Fe, the latter very important due to Rosario, as well as Patagonia, where we could implement that system in a hurry without any need for major funding. Beyond that, two important issues.
Firstly, I trust fully in the capacity and intelligence of our judges. When there was a substantial change in the law, for example, oral trials without courtrooms, they had to work weekends immediately and the judges worked it out and found solutions. We have apt and imaginative judges but beyond that this minister is looking for funds in order to try and have a basic minimum without taking money out of the National Treasury, which needs it for other essential functions, so that I can set my goal, bringing forward this system which has been around for six years without coming into being – it must be done.
Are you planning from your portfolio any action regarding the legal regulation of denialism and hate speech, which is an issue especially close to my heart?
That is contemplated in international conventions and this interests me especially. You have to have peace and harmony to live in society. Whoever cannot respect that, infringing the rights of other people, whether via hate speech, discrimination or picking on the vulnerable and children, will be liable to legal sanction, you cannot just have safeguards. Liberty has its limits, which are when you cross the line. Even the freedom of expression, about which I have written a great deal in favour, has its limits, which are when you cross the line. So beyond doubt any legal order has to have a frontier of respect and harmony, abiding by the law, something to which we Argentines are not accustomed - we are always dodging it but there must be a limit.
Speaking concretely about denialism, should Argentina have a specific law?
Argentina needs to pay more attention. There are so many rights, not just the ones you are bringing up. In health, I just cannot believe the number of protective lawsuits presented so that people can receive [medical] attention. Once they win that lawsuit, they still have to go to court. We have forgotten about the environment. The elderly, the vulnerable, also forgotten. We have an enormous range of new technological rights, for which we need new legal structures to accompany the evolution in the world. We’ve fallen behind in many aspects.
In the controversy over the “dos por uno” [2x1, or two years off the final sentence for every year of pre-trial detention] ruling, do you think human rights cases go over the top or is the constitutional guarantee of retroactive punishment for more serious crimes correct?
Here there is a tremendous state policy about the military and the plea of [Luis] Muiña was very simple: During all the time until I was tried [for human rights violations], I had the right to “dos por uno” if I make that law retroactive, which is a principle of constitutional law, and that law was in force. So I believe the first Muiña ruling to be right. People have rights, whether military or not.
So was the Supreme Court right?
The first Muiña ruling was correct. What happens here is that there are issues which are talking-points in Argentina and there is a machinery to legitimately defend those rights and also to give the contrary opinion. But if you say to me: Let’s analyse this legally and take it to the [law] faculty and the professors of foreign universities, there is no doubt as to its legality.
You said in a Clarín interview that you took the job to put an end to the judicial wheeler-dealers and the suitcases in the courtrooms. How did all that legal fabric develop?
The Central Courthouse, which I knew when I was small and where I worked in the 1970s and 1980s, was invaded by politics. Since judicial independence disappeared, the different governments, from my beloved Carlos Menem onwards, took the court system by storm and started off the judicial battles.
An old Italian author, Francesco Carrara of Pisa, said that when politics enters the courtroom, justice flies out of the window and he’s right. The justice system must be depoliticised completely – let them work, let them work.
How did you feel on seeing judges and prosecutors travelling with media businessmen to Lago Escondido?
I had to defend them. I believe that they are magnificent judges who travelled on the spur of the moment with no illicit aim in mind. None of them had any case [of their travel companions] in their courtrooms, no personal interest. It was a social weekend thing. I have no doubt that it was used politically to damage them and a certain press medium because they were handling sensitive cases at that time. And the proof of that is that this case was wound up by a very good ruling by the intervening judge because it was a setup whereupon they sued certain state agencies who had the cheek to hack the mobile phone of [Buenos Aires] City Security Minister [Marcelo] D’Alessandro and extract the contents – that’s illegal espionage, a savage crime. The whole case was a setup to harm them.
You criticised the ‘Cuadernos’ [notebooks corruption case] in which you defended some of the businessmen involved. What is your stance on whistle-blowers?
That law was used perversely in the Cuadernos case to obtain illegal confessions. I’m referring to this – the judge, with whom I had a cordial relationship, [the late Claudio] Bonadio, ordered the arrest of many people, denying them release and keeping them in prison while making this proposal: testify or you will stay in jail. And the mechanism of the law is free will. If he had summoned them, as generally done by any courtroom, no whistles would have been blown but he made them choose between testifying with data or remaining in prison as being considered part of an illicit association, a heinous crime, until their case was resolved by an appeals court. Faced with that alternative, many testified as whistle-blowers but not of their own free will.
That was my experience in the Cuadernos case. The whistle-blower scheme is good within the framework of the law when filmed in consensus with the lawyer and expressed with full consent and the free will of the witness. In Argentina I don’t know who really repents – it forms part of a deal. I blow the whistle to obtain my release, otherwise I stay in prison.
One important issue is drug-trafficking. Will you be deepening the obtention of information via international intelligence agencies?
Via everything going. I was in the United States Embassy and spoke to the British Embassy. Argentina has fallen off the map and is not taken into consideration by the rest of the world. We are not going to stop going to all the international conventions against drug- and human-trafficking and corruption, we’ll be there. The third person proposed for this task in the UIF [Unidad de Investigación Financiera] money-laundering watchdog is a trilingual courtroom secretary whose salary will be halved for coming to work in public service and who will represent us very well, knowledgeable about the law, honourable and reinserting us into the world. One of my indications to UIF candidates is to build up Argentine presence in the world. One request I made yesterday to [the US] ambassador was to make the legal red tape easier and faster. And the lawyer, thank God, understood me the same minute, telling me: “Mariano, I’d love to, we’re on your side.”
You met the members of the Supreme Court, what expectations do you have of the Executive Branch’s relationship with them?
I would like it to be a respectful, cordial relationship in which they can work freely without pressures like that embarrassing impeachment which was started against them. The justices are good judges who can work and lay down doctrine for the lower courts. The Supreme Court enlightens when it issues rulings as the maximum guarantee and custodian of constitutional principles. It should be like in the United States or France or anywhere in the world, a privilege and a luxury to be a Supreme Court justice because they can work freely and pronounce rulings in accordance with the law.
Is it OK with five justices or should there be more?
It seems perfect to me. Nine justices have never worked historically with no guarantee of greater speed – on the contrary, they slow things down without guaranteeing better service. And I believe that limits should be set as a court of last resort. The Supreme Court cannot have so many cases. We lawyers specialise – well, I don’t any longer – in sending trivia to the Supreme Court and there are so many trials which should not be arriving there.
Regarding the vacancy in the Supreme Court, what should be the profile of the person filling it?
I‘d like a person of around 50 with a harmonious and balanced personality but two main requisites: firstly, a knowledge of the law and secondly, common sense, logic and streetwise. They should also be a person who understands what’s going on in the country and who has criteria. You might have a great theorist and a great practitioner without meeting those two conditions. [Piero] Calamandrei said that the practitioner is a nightmare and the theorist a calamity with neither of them any good – you have to meet those two conditions.
Should it be a woman?
In my judgement, female judges are very good, better than men, since they are more consistent, orderly, methodical and responsible. I’m betraying my own gender but the truth is that I know of no scandal involving a female judge save for one case in Morón in the 1980s while males have heaps of scandals. Our history includes Margarita Argúas, Carmen Argibay, [Elena)] Highton [de Nolasco], the federal judges María Servini and [María Eugenia] Capuchetti, de luxe judges. If you go to Ushuaia or inland, you’ll find very good female judges, I love them all.
Let me open up a personal chapter. In an interview you recently gave El País, you trivialised the problems you had exercising your profession when you even went to jail accused of robbing video evidence in the AMIA [the Jewish community centre destroyed by a terrorist car-bomb in 1994] case, your own self-definition as a “revolutionary” in that interview and your performance in the [Guillermo] Coppola case. When today you look at that young Cúneo Libarona in hindsight, would you change anything?
A great number of things. I was very rash in trying to arrive at the truth, I exposed myself. At my current age, I don’t know if I was wrong. I was very keen on making justice and fighting injustice and in those two cases history proved me right. They were cases in which the judges ended up arrested and on trial. Thanks to Mariano Cúneo, who was daring but it cost me sweat and tears. I was unselfish and today I would be more selfish, thinking more of me and my family and not exposing myself so much.
What did you learn from those 32 days in jail?
I went to a wake where I noted who was there and who wasn’t. I saw lifelong friends and I also saw friends absent. I separated my life into two, a group of real affection and others whom I later ignored. I’ve valued my wife and family greatly, my impressive siblings and the affection of the people. Even those judges who subsequently acknowledged that I was right in conclusive form by quashing the case. But I was very young, 30-odd, attending my own wake.
Was it useful?
Today I look back on it and would prefer it not to have happened but in truth I take it as an experience, part of my lifelong masters class.
If you had not been a lawyer, what would you have made of your life?
I would like to have been the No. 5 shirt for AC Milan, a centre-back.
Production: Melody Acosta Rizza & Sol Bacigalupo.
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