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OPINION AND ANALYSIS | 13-05-2023 08:41

On planet K, the rule of law is undemocratic

The attempt to impeach the four members of the Supreme Court is going nowhere, and the government’s predictably furious reaction is unlikely to enhance its image either here or in the rest of the world.

Though many, perhaps most, Argentine politicians have law degrees, few take seriously what they presumably learned while acquiring them. There is certainly no reason to think that the majority still feel properly impressed by all the solemn references to “the majesty of the law” they must have heard when they were students. On the contrary, if the behaviour of some of their number is anything to go by, many soon came to the conclusion that only fools and weaklings let themselves be deterred by legal niceties which, as everybody knows, can always be sidestepped by crafty lawyers.

In his current incarnation, President Alberto Fernández – who in his spare time gives classes on legal matters in the country’s top university – evidently shares this view; he thinks that political interests must always come first and that constitutions, whether national or provincial, are no more than wishlists nobody important should feel obliged to pay much attention to. According to him, suggesting that fine upstanding Peronists such as San Juan’s Sergio Uñac and Tucumán’s Juan Manzur, who support the government of which he is the formal chief, should be debarred from running for offices they have grown accustomed to holding just because the local constitution says they have done so long enough, is flagrantly undemocratic.

Would Alberto – a man like the one Groucho Marx joked about when he said “I have my principles, if you don’t like them, I have others” – adhere to that opinion if the men seeking yet another re-election were opposition heavyweights who, if they succeeded in beating their rivals, could cause him a great deal of trouble? In such a case, he would be more than likely to favour the populace with a dazzling display of erudition before forcefully reminding the pair of them that in Argentina, nobody, no matter how popular he or she might be, is entitled to override the law.

Countries have legal systems, constitutions and stuff like that in order to limit what people are allowed to do. On occasion, this puts the law at odds with majority opinion. In some places, most people would like violent criminals to be subjected to extremely harsh treatment and are disappointed to see them get nothing worse than a spell in jail. If such views prevail for a long time and start having a strong influence on the way people vote, the death penalty could eventually be reinstated almost everywhere, but for that to happen in well-ordered societies years would have to pass. Luckily not only for hardened criminals but also for most other men and women, laws and constitutional arrangements tend to change at a much slower pace than political or social fashions. In law-abiding countries, governments refrain from rewriting constitutions whenever it suits them. Is this undemocratic? Only if you think that absolutely everything should be put to the vote. 

The Kirchnerites, especially their leader, must hope that the present state of affairs, with the law lagging behind public opinion, continues for many years to come. If future governments turn out to be as vengeful as theirs has certainly been, it would be relatively easy for their enemies to find plenty of plausible reasons why large numbers of Kirchnerite operatives, beginning with Cristina Fernández de Kirchner and her son Máximo, should spend what remains of their life behind bars, but under the present rules, and thanks to the slothful nature of the country’s judicial system, many, though perhaps not the Kirchners themselves and members of their inner circle, should be able to escape such a fate. 

Alberto, Cristina and the rest of them pretend to be firm believers in the notion that the law should always be subordinated to majority thinking because they once took it for granted that it was on their side and assumed that it would always remain there. If the opinion polls are anything to go be, however, most Argentines have already turned against them and, given the appalling prospects faced by an economy which is undergoing meltdown, throwing millions into extreme poverty, with many more doomed to follow them in the next few months, they could be even less popular in the very near future than they are already. Were the sea change that seems to be taking place to have an immediate effect on the country’s legal system, the people responsible for the disaster they have wrought would be likely to find themselves facing mobs baying for their blood and hotly demanding that they pay heavily for wrecking so many lives.

When Cristina sensed that the political winds were beginning to turn against her, she embarked on a frantic campaign to “democratise” the Judiciary by forcing those involved in it, led by the Supreme Court judges, to stand regularly for election just like common and garden politicians. Had she succeeded, she would have eliminated the legal barriers in her path and, along with her cronies, could have continued shovelling vast amounts of public money into offshore bank accounts and her political war chest. As luck would have it, her takeover bid failed and a minority of judges and prosecutors, eventually joined by the Supreme Court justices, took it upon themselves to delve into her affairs, thereby thwarting her determined attempt to institutionalise corruption.

The Kirchnerites’ attempt to impeach the four members of the Supreme Court is going nowhere, and the government’s predictably furious reaction to the decision by three of them – the fourth is in Europe – to put the gubernatorial elections in San Juan and Tucumán on hold so they can take a closer look at their respective provincial constitutions, is unlikely to enhance its image either here or in the rest of the world, where many think they are just a bunch of crooks. 

In the United States and Europe, the Peronist movement as a whole has long been regarded as a regressive political throwback which succeeded in making what for a time was seen as one of the most promising countries on earth a truly spectacular collective failure. For decades, Peronists managed to persuade many here that their unfortunate international reputation was based on nothing more than ignorance and anti-Argentine prejudice, but three years of Kirchnerite rule have been enough to make a growing proportion of the local electorate share views which were long attributed to a despicable alliance of “gorillas” at home and their imperialistic friends abroad. 


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James Neilson

James Neilson

Former editor of the Buenos Aires Herald (1979-1986).


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