Argentina: New Law Weakens Judicial Independence
(Washington, D.C.)—By voting to overhaul the composition of the body that nominates and dismisses judges, the Argentine
Congress has undermined safeguards of judicial independence in the country, Human Rights Watch said today.
The new measures, proposed in a bill by Senator Cristina Fernández de Kirchner, were approved by Congress late on
Wednesday evening after a nine-hour debate.
"Whatever the ruling party’s intentions, this reform will increase the vulnerability of Argentina’s courts to political
pressure," said José Miguel Vivanco, Americas director at Human Rights Watch. "It's a big disappointment given all that
this government has done to restore the credibility of Argentine justice and strengthen the rule of law."
The Argentine Constitution, which dates from 1994, stipulates that there should be a balance between legislators,
judges, lawyers and academics on the Council of the Judiciary, which is the body responsible for selecting judges for
appointment by the executive branch. This balance was considered essential to shelter judges from the sudden shifts in
the country’s political climate.
The new law reduces the Council from 20 to 13 members, while increasing the proportional representation of politicians.
They will now outnumber the professionals and experts on the Council for the first time since the body was created in
1997.
The governing party also increases its weight on the new Council. Together with the executive branch appointee it will
hold five of the 13 votes. Since the Council's decisions are taken by a two–thirds majority when the selection or
dismissal of judges is being debated, the governing party will be in a position to veto candidates for the judiciary and
to block dismissals.
Of equal concern is a change in the rule governing the quorum in the Council, which could allow it to function without
any participation at all by the judges, lawyers or academics. With the new composition, the six legislators and the
representative of the executive branch could hold sessions all on their own.
In a letter to Argentine President Néstor Kirchner urging him to seek amendments to the bill , Human Rights Watch cited
the European Charter on the Statute for Judges (1998), which recommends that at least half of those who sit on
independent bodies responsible for the selection and dismissal of judges should themselves be “judges elected by their
peers following methods guaranteeing the widest representation of the judiciary.”
However, in a reply on behalf of the Argentine government, the head of the cabinet, Dr. Alberto Fernández, defended the
idea that those elected by popular vote should hold a majority on the Council, rather than those who had no citizens'
mandate. While explaining why in his view the legislators should hold a majority, he does not explain, however, why
there should not be parity between elected and non-elected members. By insisting that the legislators should have a
majority, he implicitly rejects the standard of balance that the European Charter adopted as a safeguard to protect
judicial independence.
The creation of the Council of the Judiciary in the Constitution of 1994 was a response to abuses that resulted from a
system in which the president appointed judges with the agreement of the Senate. Judges were dismissed after an
impeachment process conducted by Congress. Judges were often chosen for their political affiliation rather than their
professional qualifications, and dismissal hearings were criticized for being highly politicized.
It was argued at the time that an independent council balanced between legislators from both government and opposition
benches and non-elected members from the judiciary, the bar, and academia, was the strongest safeguard against political
interference. By altering this balance in favor of the majority party and the executive branch, the law approved today
goes back on that principle.
The Justice Council has been widely criticized for inefficiency and lack of transparency. Civil society monitors,
including the Argentine Federation of Bar Associations, have argued however that the reforms do not solve the problems
they are intended to address. In its letter to President Kirchner, Human Rights Watch said that the measures proposed by
the government would do more harm than good.
"It's beyond doubt that the ruling party has enhanced its power over decisions affecting the judiciary," said Vivanco.
"In the long run, this move is likely to undermine public confidence in the independence of the courts and weaken the
separation of powers in Argentina."