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OP-ED | 23-04-2022 00:01

Divide and rule (but not rule of law)

A separation of powers still nominally exists but all three branches of government now respond to partisan battle lines.

Restoring the Council of Magistrates to its original 1998 format from the 2006 Kirchnerite reform (which shrank it in such a way that its political members outnumbered the legal) was supposed to have depoliticised this judicial watchdog, but this week’s saga only confirms it as a political football. A separation of powers still nominally exists but all three branches of government now respond to partisan battle lines (without even having any parties in any real sense – on the contrary, the fragmentation only continued last week).

Rather than a constitutional blemish, this confirmation of political gridlock is a disaster for justice in very real terms – a third of the country’s judicial benches continue vacant with all too many occupied by venal judges who ought not to be there but cannot be removed, while the Council of Magistrates remains dysfunctional. This should be the main issue, not the politics, but neither does politics gain from this sordid jockeying, deepening its alienation from the real concerns of a country plagued by rampant inflation – those protests crippling downtown traffic every now and then are not clamouring for judicial reform.

These points should form the core of any analysis but it was the shenanigans of Vice-President Cristina Fernández de Kirchner which seized this week’s headlines (as usual) so let us dissect them. Her main stunt was to split her own caucus in the Senate in order to create an artificial second minority and thus snatch a councillor from the opposition. This gives rise to various questions. Will this move succeed in either its immediate or further aims? And was the Council of Magistrates her only target or is there a deeper subtext to all this?

After the Supreme Court itself quashed the absurd bid of an Entre Ríos magistrate to overrule it over the admission of new parliamentary councillors, the veep decided to accept the restoration of the Council on her own terms. The return to 20 members from 13 included a fourth senator representing the second minority to join the two senators for the majority and one for the minority. This second minority was assumed to be the PRO wing of the Juntos por el Cambio opposition with only nine of its 31 senators but on Tuesday evening Fernández de Kirchner abruptly split the 35 senators of Frente de Todos into 14 loyalists, reviving the 2017 Unidad Ciudadana label, and 21 mostly responding to provincial governors as a Bloque Nacional y Popular while retaining Frente de Todos as an inter-bloc tag like Juntos por el Cambio. She then sought majority representation for her Unidad Ciudadana minority by sending Martín Doñate to join Mariano Recalde (who then had to switch to the other caucus) on the Council but now her bases seem covered while opposition protests against underhand tactics lack sincerity if they previously imposed PRO’s Pablo Tonelli via a lower house majority vote, despite not belonging to the majority caucus.

But does all this make the veep a winner? Not only has she sacrificed parliamentary unity to accommodate judicial pressures but the process exposes her as only numbering 40 percent of senators among her ultra-loyalists – a high price for three-quarters of the senatorial councillors in an evenly split house. This week’s little coup also gives her eight or nine of the 20 councillors which suffices to block anything requiring more than a simple majority but does she really want the Council blocked? Just to give one example, those dreaded judges Leopoldo Bruglia and Pablo Bertuzzi (whom she sought to oust) will man the Federal Appeals Court until the Council decides otherwise.

Another question is whether the caucus split had no other purpose than an extra Council of Magistrates seat? Or does it mark a longer-term strategic shift to confirm the internal differences arising from the agreement with the International Monetary Fund and disown the government, retrenching in isolation for the aftermath of next year’s elections awaited with the utmost defeatism? And will next year’s PASO primaries suffice to resolve those differences or will there be a total split? And would the resulting weakness tempt a tensely united opposition into thinking that they could divide too?

Nor should Cristina Fernández de Kirchner’s onslaughts against the Judiciary be necessarily reduced to seeking to dismiss the many cases against her as lawfare – the new drive to pack the Supreme Court seems to mark an intolerance of any power beyond an elected government. But all this only loses touch with a vast majority of people mindful of other problems and feeds anti-system politics.   ​

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