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OPINION AND ANALYSIS | 13-05-2023 08:35

The Supreme Court’s political muscle

The Supreme Court’s decision must be read purely in political terms, demonstrating that it won’t back down and has the intention to play hard ball in the political arena.

Is the Supreme Court overstepping its boundaries by calling off two provincial elections, only five days before voters were set to go to the ballot box? This seemingly simple question has become almost impossible to respond objectively, absolutely breaking the Argentine political ecosystem in two along the standard polarised lines of “la grieta.” For the dishevelled pan-Peronist Frente de Todos coalition it couldn’t have come at a better time, despite the large probability that Peronist incumbents in San Juan and Tucumán, Sergio Uñac and Juan Manzur would prove victorious in the electoral bout. It’s become the glue that has united the different factions that make up the governing coalition, allowing them to echo Vice-President Cristina Fernández de Kirchner’s idea that through ‘lawfare’ the Judiciary is looking to proscribe Peronism. In the heat of the presidential campaign it came as a splash of cool, refreshing water on a hot summer’s day. For the fragmented opposition that makes up Juntos por el Cambio, the court’s decision has given them another quick win, suggesting an alignment with the highest echelons of the Judiciary that continues to prove useful in their battle to end the Kirchnerite hold on Argentine political power. The decision was celebrated by most opposition leaders, with presidential hopeful Patricia Bullrich directly owning it by tweeting, “we’ve stopped their re-re-elections.” Not only has the Supreme Court flexed its political muscle just as the presidential campaign is getting rowdy, it has also stopped the incumbent Peronist momentum in provincial elections where Ricardo Quintenla secured La Rioja and Hugo Passalacqua retained Misiones. At the end of the day, though, the Supreme Court’s decision must be read purely in political terms, demonstrating that it won’t back down and has the intention to play hardball in the political arena.

According to the decision, which essentially put a stay on the elections for governor in both provinces, the Supreme Court was looking to guarantee a constitutional precept that aims to preserve the Republic by preventing leaders from perpetuating themselves in power. This has been a big issue, particularly since the return of democracy, where several Peronist governors have been accused of becoming feudal lords that essentially own the political apparatus in their provinces. The archetypical case is Gildo Insfrán in Formosa, who has governed the province since 1995. He was deputy governor in the period immediately before that and previously held a post as a provincial deputy once democracy was restored in 1983. In other cases governors and their deputies will alternate in the top spot to skirt provincial restrictions on limitless re-election, while other times it will be family members that will keep the seat warm as they make their way to the lower house Chamber of Deputies or Senate, only to return once the term-limit has expired. Many of these provinces are amongst the poorest in the nation, with a majority of the working population employed by the state while the few local media outlets are financed with official advertising. Political control is tightly held.

Tucumán’s provincial constitution indicates that the governor and his deputy have a four-year term and can be re-elected once. Being a deputy doesn’t impede running for  governor, but once you’ve held the top post for two consecutive periods you must sit out one term before coming back into the game. This convoluted wording, of course, is part of the legal stratagems built into the system in order to allow politicians to circumvent restrictions. In Manzur’s case, he had taken a leave of absence to become Cabinet Chief for President Alberto Fernández (his tenure went largely unnoticed), never leaving his post as governor, which is his second time leading the executive after two consecutive runs as deputy. Thus, the rule says you have to sit out. In San Juan, the provincial constitution indicates that the governorship lasts four years and that they can be elected consecutively twice. Uñac clearly has been governor for two straight terms —previously he was his current contender’s deputy, José Luis Gioja.

In both cases electoral law is a matter of provincial law, yet the Supreme Court has already intervened in similar cases, setting jurisprudence that confirms its authority to rule in such instances. In 2013 in Santiago del Estero they also ruled five days before the election. The Court’s make-up was different as Chief Justice Horacio Rosatti and fellow Justice Carlos Rosenkratz weren’t part of it, while Ricardo Lorenzetti was currently abroad at a concert alongside Pope Francis in Vatican City and therefore didn’t vote this time. Judge Juan Carlos Maqueda did participate both times. In that ruling one of the major differences was that they decided on the underlying interpretation of provincial law, as opposed to staying the process without resolving the matter. The same thing happened in other cases such as Río Negro in 2019. Yet, reducing this issue to “pure law” would be a mistake, and a case for legal scholars. Instead what’s at hand is the political behaviour of the Supreme Court and whether or not it is undermining the system.

According to Rosario Ayerdi and Ariel Stemphelet in Perfil, Uñac and Manzur had certain assurances that the Supreme Court wouldn’t intervene. Apparently this is what Lorenzetti’s office had indicated, which explains why he jetted off to Rome. While the governors are part of Frente de Todos, they consider themselves Peronists and not Kirchnerites, which could explain why Uñac decided not to sign on to the impeachment of the Supreme Court justices championed by Fernández de Kirchner’s acolytes in Congress. Cristina, a sworn enemy of this Supreme Court, has been on a crusade against the Judiciary since leaving the presidency and being charged for corruption in multiple cases. Since returning as vice-president, she’s used every public appearance to accuse them of political persecution, with lawfare ultimately becoming one of the pillars of the Frente de Todos’ ideology, if it can be called such. While the impeachment of the Supreme Court justices has no teeth in that the Frente de Todos doesn’t have enough votes for impeachment, it has become part of an onslaught that included the leaking of private phone messages revealing improprieties that were attained through hacking and illegal espionage, and accusations of collusion with the opposition. Maybe they finally pierced the armour? The same day the decision came out, Rosatti unusually spoke at the AmCham summit where he criticised “uncontrolled money-printing,” clearly overstepping his boundaries by commenting on the Executive’s economic policy.

Given the secretive nature of the Supreme Court and its consistent internal politicking, it is difficult to reach a definitive conclusion on the decision. What is clear here is that they won’t sit on the sidelines. Unfortunately being so explicit about their political muscle undermines their credibility and lowers the Court to the same base level of political interaction as the rest of the ecosystem.

Agustino Fontevecchia

Agustino Fontevecchia

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