Throughout the twentieth century, a number of Latin American
countries suffered multiple disruptions to the democratic order and a parallel
corrosion of their public institutions. Whenever this occurred the judiciary
invariably sided with the conservative and authoritarian sectors that had
seized power by force.
Following a coup, the first act of the generals and commanders
responsible was to remove the executive; the second was to shut down the
legislative. Rarely, if ever, did they touch the judiciary.
Argentina is one of those countries. After more than thirty years of
democracy, a number of institutions - from political parties to the army - have
been overhauled and renewed. Yet this is only half true of the judiciary, many
of whose currently active members held senior fiscal or judicial positions
during the years of repressive government.
Judges Luis María Cabral and Ricardo Recondo, who have
alternated over the last decade as president of the Association of Justices of
the National Court (the judges’ union), are the archetypal embodiment of
this relationship. There are many more.
Others, too young to have had any direct connection with the crimes
against humanity committed between 1976 and 1983, are relatives of and share
the same social circles as those who were engaged in state terrorism.
This is the case of Attorney General Ricardo Sáenz,
who championed the Full Stop (1987) and Due Obedience (1988) amnesty laws aimed
at guaranteeing immunity for the perpetrators of crimes against humanity. Both
laws were repealed by former President Néstor Kirchner at
the beginning of his term in 2003.
President Cristina Fernández, Kirchner’s wife and
successor, recently referred to this when she said that many of those who
historically opposed her late husband’s government, "do not forgive" him
for having both repealed these laws and annulled pardons granted to assassins
in order to safeguard their impunity.
In Argentina, the so-called “judicial
family", a caste formed by generations of judges who share family names,
retains to this day a series of privileges that are incompatible with a modern
democratic society - such as not being obliged to submit their financial
disclosure statements, and being exempted from a number of taxes payable by
ordinary citizens.
This being a closed milieu, a judicial career is not
accessible through open competition, but through family or friends.
In 2013, Cristina Fernández sent to Parliament a package of measures
aimed at democratising the judiciary, promoting transparency, and giving
greater legitimacy to legal proceedings. From then on, the judiciary has
conducted an overt and sometimes even violent offensive against the government.
Having already blocked a number of presidential initiatives endorsed
by Congress, the courts then turned their attention to the officials
themselves. Suddenly, judges and attorneys whose performance had been under
scrutiny in recent years decided to investigate complaints – some of them
anonymous - against both Cristina Fernández de Kirchner herself and several Kirchnerist leaders. Needless to
say, although the legislation proposed by the president to democratise the
judiciary was approved by Congress, the judges found legal grounds to block it.
Just as the proposed legislation to control media concentration
ignited a public debate about the ownership and role of the media, a similar
controversy about the judiciary has forced many judges and prosecutors who
usually keep a low profile, to reveal their opposition to legislation aimed at
democratising their profession.
The judges’
collective effort to challenge a democratic government
plus their public exposure as a body that for decades has operated in the
shadows, stood in the foreground of the political rally that took place in the
streets of Buenos Aires on February 18, whose formal purpose was to pay homage
to Special Prosecutor Alberto Nisman [1], who died in circumstances that remain
unclear.
During the twentieth century, the coalition between segments of the
elite and the army was known in Argentina as the ‘Military Party’. It worked to
overthrow almost every democratically-elected government.
The ‘Military Party’ has finally ceased to exist. Damaged by popular revulsion at the
crimes committed during the Dirty War (1976-1983), it was eventually disbanded
after the trial and sentencing of those found most responsible for the mass
killing of some 30,000 people.
Today, an alliance of big business, finance and large media
companies have found, in the “judicial Party”, a new
battering ram with which to destabilise a government that they have not been
able to defeat at the polls.
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[1] Alberto Nisman was the special prosecutor investigating the 1994
terrorist bombing of a Jewish community centre in Buenos Aires. The quality of
the investigation that he led was seriously questioned by groups of victims.
His failure to present sufficient evidence in recent years put him at odds with
the Fernández government, which had provided him substantial resources to
carry out the inquiry. Paradoxically, he had also confronted many of the
colleagues who now claim to be on his side.