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OP-ED | 09-10-2021 12:16

Could justice be just just?

Unfashionable as this opinion might be, Argentine justice is showing various signs of a robust independence from outside pressures in exceptionally volatile political times.

Unfashionable as this opinion might be, Argentine justice is showing various signs of a robust independence from outside pressures in exceptionally volatile political times. Justice is commonly seen as a political shuttlecock with its verdicts shifting according to electoral tides and such suspicions are far from unfounded, but Thursday’s acquittal of Vice-President Cristina Fernández de Kirchner over her Memorandum of Understanding with Iran is already one counter-example, along with others.

If the judges had been slavishly following electoral trends, a conviction would have been an extremely rare case of satisfying the political divide on both sides, primarily helping a triumphant opposition to complete the discredit of its supreme foe but also assisting beleaguered President Alberto Fernández in reasserting authority over his estranged veep. Yet the judges not only abstracted their verdict from such temptations but also from the clouds forever hanging over this case due to the mysterious 2015 death of prosecutor Alberto Nisman until the source of that bullet through his head is properly clarified (an increasingly unlikely prospect).

Their ruling here covered over 300 pages but the underlying logic is respect for the separation of powers – the principle that governments are elected to implement policies which cannot be taken to court, no matter how bad (a reasoning already applied to the dollar futures case against the same ex-president). Those particular policies rank among the most stupid of the numerous errors of the Cristina Fernández de Kirchner presidencies, which must either admit to being unacceptably naïve in expecting the oppressive Islamic Republic of Iran to co-operate in the investigation of the 1994 AMIA Jewish community centre terrorist bomb atrocity or leave itself open to multiple suspicions of some sinister subtext in the pact with Teheran (including nuclear as well trade deals) – there is no other way out. Yet the natural judges of these policies are not the Judiciary but the national electorate (with CFK having no reason to consider herself acquitted in that arena).

Thursday’s verdict is not the only recent indication of an impartial justice. What stronger image of a neutral judiciary could be conveyed than the current and previous presidents being investigated at the same time? But San Isidro Federal Judge Sandra Arroyo Salgado (Nisman’s former wife, as it happens) seeks to try the case involving the first lady’s birthday party in Olivos presidential residence last year in flagrant contravention of the quarantine then in force, while judge Martín Bava has summoned ex-president Mauricio Macri in connection with the illegal espionage of the bereaved families of the ARA San Juan submarine crew. Not that these judicial initiatives should be automatically seen as impeccably neutral – thus Bava’s summons of Macri when presumably knowing him to be out of the country smacks strongly of entrapment into contempt of court. The whole timing of his drive looks suspiciously like an electoral smear when Macri’s crime seems less any despicable snooping on wretched mourners than the colossal political blunder of entrusting the fractious intelligence services to the inept management of his football transfer agent pal Gustavo Arribas. But we should not prejudge this case and in any case there is nothing wrong with nobody being above the law.

While the separation of powers remains the ideal, on at least one front politics seems to be influencing the judicial sphere in a positive direction – namely, the stronger possibility of a relatively neutral attorney-general chosen with relative unanimity. Until her recent electoral comeuppance, the vice-president had cherished the illusion that her now increasingly precarious Senate majority would permit her to replace acting attorney-general Eduardo Casal with a personal acolyte but now consensus seems to be gathering around the presidential nominee Daniel Rafecas as at least a lesser evil in the eyes of both herself and the opposition. Rafecas is not perfect but both his previous clash with Fernández de Kirchner’s vice-president Amado Boudou and his refusal to be appointed by anything less than the statutory Senate two-thirds majority argue in favour of a certain integrity.

Nor is justice perfect, perhaps least of all at the top with the less than unanimous election of the new Supreme Court Chief Justice Horacio Rosatti and the vacuum left by the sudden exit of Elena Highton de Nolasco, while more court questioning of the ease with which public money is being turned into electoral slush funds would also be desirable. But if seven decades ago the novelist E.M. Forster penned a critical defence of elected government entitled Two Cheers for Democracy, two cheers for Argentine justice might be an apt conclusion here.

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