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OP-ED | 26-11-2022 01:52

Hanging in the balance (of powers)

Argentina has very concrete problems resulting from the seemingly abstract factor of legal security.

Today the fate of the nation might seem to lie almost 14,000 kilometres distant in this afternoon’s World Cup fixture against Mexico, especially after Tuesday’s shock defeat against Saudi Arabia (even if Argentina managed to clear the first round with only one point from its first two matches at the last World Cup in Russia), but amid all such distractions the real battleground might be much closer to home. And while the vice-presidential obsession with the judicial front amid runaway inflation and macroeconomic disarray often seems obtuse, the potential escalation of the conflict of powers makes it a prime candidate to be the main issue ahead of economic developments such as the success of the upcoming Precios Cuidados/Precios Justos price controls or a revival of the “soy dollar.”

Potential because the last word on the tussle over Council of Magistrates representation is still awaited. As far as the Supreme Court is concerned, the Senate’s insistence on the disqualified Kirchnerite senator (nominated on the basis of laying claim to a second representative via the artificial division of a ruling party caucus which otherwise operates as a single unit, a strategy rejected by the highest tribunal) is the upper house’s loss since the Council then simply sessions without the Congress representatives. But quite apart from compounding the chronic quorum problems deadlocking the Council, this institutional dispute creates problems beyond the judicial watchdog.

It is important to underline that the current defiance of the Supreme Court is dangerous, quite apart from the rights and wrongs of any specific issue. Thus even if Vice-President Cristina Fernández de Kirchner were right to insist that the self-definition of a parliamentary caucus is none of anybody else’s business and even accepting the government’s argument vindicating its 2020 reduction of this city’s slice of federal revenue-sharing funds on the grounds that an opulent capital had been unduly favoured by the previous Mauricio Macri presidency, this would not make any difference. A government disobeying the rule of law when there are reasons to believe it might be right would be equally entitled to defy it when wrong if it claims to have right on its side, thus exposing the country to any type of abuse.

Yet open defiance is not the only threat to the rule of the law. Even if the deadlock over the Council of Magistrates can somehow be defused and resolved, the judicial system can be neutralised by a constant guerrilla warfare of circular appeals. And the will to allow the independent operation of that system is clearly lacking in a government responding to the vice-president’s doctrine that the judicial branch should be elected by the popular will, just like the other two branches of government and consequently aligned with them (even if almost two-thirds of that popular will went against the government in the most recent elections). This doctrine, in turn, gives legitimacy an electoral rather than legal, institutional or constitutional basis.

In conclusion, while we began by centring attention on the judicial conflicts ahead of the more urgent economic problems, these two spheres should not be rigidly separated. If the ranks of those below the poverty line (and even more the destitute) continue to rise and if the youth exodus persists, this can be directly traced to a lack of foreign investment, which is in turn a reaction to shaky legal foundations – very concrete problems resulting from the seemingly abstract factor of legal security. Yet these remain long-term problems in a country where the urgent is constantly crowding out the important – with the urgent right now taking the form of this afternoon’s World Cup match against Mexico.  ​

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