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OP-ED | 23-09-2023 05:05

Of electoral and constitutional triangles

Winning on October 22 will not be the end of the story.

For the last six weeks media attention has centred almost exclusively on the trio of presidential candidates arising from the three-way split of PASO primary voting but recent days have shown this not to be the only triangle in the political game – the Constitution of the Argentine republic is anchored on the separation of powers between three branches of government, of which the judicial and legislative have been protagonists in the past week (indeed, rather more than the executive with the speech of President Alberto Fernández to the annual United Nations General Assembly in New York restricted to a few paragraphs in most newspapers).

The most striking judicial initiative in the past week was, of course, the Federal Criminal Cassation Court’s decision to revive two trials including Vice-President Cristina Fernández de Kirchner among the defendants, the suspected money-laundering via her family’s Patagonian hotel chain and the Memorandum of Understanding with Iran, but this is more about closing chapters of the past – of greater relevance to the immediate future is Supreme Court Chief Justice Horacio Rosatti’s anticipated veto of the dollarisation propounded by PASO winner Javier Milei. This serves as a reminder that not only Milei’s central plank but potentially every initiative of any future government will have to pass a judicial filter planting obstacles at some point to every government in memory with the reforms needed to reverse the current crisis more drastic than most. In short, winning on October 22 will not be the end of the story.

While the judicial front will remain unpredictable, what will become immediately clear that day is the legislative scenario facing the next government. Much has been commented on the problems of governance facing Milei should he confirm his PASO victory that day or in the following month – in the best of cases he would command only a few dozen deputies in the 257-seat lower house with even double digits among the 72 senators a remote prospect. Both Economy Minister Sergio Massa and the main opposition coalition’s candidate Patricia Bullrich would have a stronger base from previous elections should they triumph but the current gridlock would almost certainly be intensified.

Yet Tuesday’s lower house approval of Massa’s personal income tax reform including a sharply elevated tax floor of a monthly 1.77 million pesos poses a new worry. A rare common denominator between the three leading presidential candidates would seem to be an enthusiasm for tax cuts – extreme in the case of Milei (“Taxation is theft”), more moderate with Bullrich (whose deputies voted against Tuesday’s tax cuts) and the latest fad of Massa who is slashing taxes left, right and centre, even if totally counter to Peronism’s high-taxing propensities. Whoever of the three might win, the danger would lie in the difficulties in resisting pressures for tax relief from an opposition seeking the electorate’s gratitude, when not coming from the government itself – since painful public spending cuts are so much more unpopular (not to mention the potential judicial obstacles indicated above), there is every risk that the fiscal deficit which almost everybody places as the root of inflation would only widen.

Criticising the legislative branch for being political would be almost like criticising the Pope for being Catholic (indeed it might be argued that Congress could do with more of a party system rather than less) but the judicial branch is entirely another matter – its prominence as a random factor in political life has also led to the Judiciary being permeated with politics. Starting at the top – Rosatti has a lengthy political track record as both a provincial capital mayor and a national minister. There is a suspicious correlation between political trends and court rulings – a cynic might point to the latest decision complicating the veep coming the day after the upset defeat of Chaco Province Governor Jorge Capitanich, a key Peronist kingpin throughout this century. Taking the two trials decided last Monday, they have both gone from one extreme to the other when very different – an innocent explanation of a presidential family owning a hotel chain after rather than before coming to public office is hard to find, even if the defence insists on the lack of written invoices for graft, whereas the agreement with Iran would fall under the general jurisprudence of governments being elected to make decisions (some better than others) and thus beyond judicial reach, as in the original ruling.

In short, the separation of powers – the other triangle which should not be forgotten amid the focus on the three-cornered battle for the presidency.  

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