The Government targets a 97-year-old justice, the Supreme Court fails to show improved democratic standards
Sunday, May 10, 2015
The Mothers of Plaza de Mayo hold a protests against Supreme Court Justices and prosecutors in front of the central court house on Thursday. The human rights group is led by government ally Hebe de Bonafini, who has called Justice Carlos Fayt a “mummy.”
By Sebastián Lacunza
Editor-in-Chief
Editor-in-Chief
A few days ago a journalist posted on his Facebook wall the opinion that Kirchnerism is completing 12 years at the Pink House with a paradox. “In May 2003, we had an Army chief implicated in state terrorism (Ricardo Brinzoni, accused of the Margarita Belén massacre in Chaco in 1976) and the membership of the Supreme Court was under discussion. In May 2015, we have an Army chief implicated in state terrorism (César Milani, accused of the forced disappearance of the conscript Alberto Ledo in La Rioja or Tucumán, in 1976) and the membership of the Supreme Court is under discussion.”
Taken to the extreme, the paradox fits, but two things must be clarified. Since May 2003, more than 500 repressors have been sentenced and another 900 have been indicted for crimes against humanity. Meanwhile, the country’s highest court — which went through a dark period during the Menem years — experienced some of the most edifying 12 years of its history, comprised by a majority of respected jurists.
In 2014, a Supreme Court with seven members was reduced to four. Enrique Petracchi, a “liberal-Peronist” who passed away in October, shared with the long-lived Carlos Fayt, an anti-Peronist socialist, the characteristic of having been appointed by the Radical socialdemocrat Raúl Alfonsín in 1983.
Carmen Argibay’s death in June last year and Eugenio Zaffaroni’s resignation in December meant that the Court lost its most internationally recognized jurists. Less diverse and with a vacant spot (the government established a five-person Court in 2006) the remaining tribunal that is made up by Chief Justice Ricardo Lorenzetti, Deputy Chief Justice Elena Highton de Nolasco, Fayt and the former Peronist senator Juan Carlos Maqueda is still a body with greater moral, democratic and intellectual stature than most of its predecessors of the 20th century — even if the justice robes are too large for some of them.
Despite their different styles and methods, President Cristina Fernández de Kirchner and Lorenzetti are in agreement when they send each other constant and veiled attacks. However, and beyond the double entendres or some budgetary conflicts, the dispute has not exploded. The government neither failed to abide by Court rulings, nor did Lorenzetti act like an opposition magistrate by systematically issuing rulings against the Executive.
There are no icons in the game of politics and the courts. Kirchernism, as is well known, does not prioritize elegance when it takes aim at a rival. The target is now Fayt, a justice who is openly critical of the Pink House and who was appointed in 1983 at the age of 66, when any mere mortal worker is already eligible for retirement.
As there is no platform for the evaluation of the health of the justices of the Court, every so often the government dusts off a request in the Impeachment Committee in the Lower House for Fayt to be put to some kind of check-up. Between a clinical exam and an impeachment process there is an institutional abyss which exposes the legal vacuum that lacks interest in accountability by some of the members of the state branch, the judicial branch, so fond of approving with their inaction circumstances that are convenient to the spirits and the pockets of their honours.
In the light of indications that Fayt does not exercise his functions with full lucidity, such as his infrequent visits to the courthouse and the occasional public appearance that denoted confusion, government officials have launched insidious claims that should at least be backed with some kind of evidence. If doubts about Fayt’s health are the origin of the affronts, the Pink House’s intentions become suspicious. Those doubts are worsened when some government officials confirm them, displaying republican standards that are well below those that compelled Kirchnerism to push for a paradigm shift in the Court in 2003.
From the protocol and administrative position that corresponds to the chief justice, Lorenzetti has tried to portray exemplary republican values, but lately he has been caught offside a few times. Engaged in a series of exchanges that are unbecoming of his role, a few weeks ago he answered the president by saying that the unpunished attack against the Israeli Embassy (1992) should be considered a “closed case,” which turned out to be incorrect and required clarification.
Lorenzetti, who has been at the head of the Court since 2007, just achieved his re-election until 2019 with a resolution with not only a falsified date and place but he also imagined an active Fayt, proposing alternatives as part of meeting that never took place. In principle, it could be interpreted as a very serious case of sloppiness of the rush to bring the appointment of the next chief justice in the court forward by eight months.
The mismanagement makes sense when it is taken into account that Lorenzetti gave himself at least in rhetorical terms the role of chief in one of the branches of the state, which is not what is indicated by the Court’s internal rules. As such, the chief justices tend to speak of “us”, call for the mutual protection of magistrates, and call for resistance when by definition the judicial branch must not be a monolithic collective but rather its members have the obligation to check and balance one another and overturn decisions whenever it is necessary.
The kerfuffle over the falsified resolution is made worse by the vacancy of the fifth member of the Court. In that regard, Lorenzetti has given ostensible indications that he does not wish that the current government appoint Zaffaroni’s replacement. The opposition, once again, fails to show up and elects an absurd dilatory strategy by refusing to examine any of the candidates that may be proposed by the executive and thus allowing a limbo that with a change of government could become a Pandora’s box. Meanwhile, the Court, with Lorenzetti’s signature, blocked a few weeks ago the appointment of provisional substitute justices with the agreement of the Senate, which de facto meant that those roles will eventually be held by judges from the Federal Appeals Courts.
The exit from this nasty game could lie in considering that all of the branches of the state serve the people. As a consequence the country’s highest court must operate with all of its members — five — and that there are no heroes above common sense and the laws of life. Either Congress, or the Judiciary using a dose of its self-governance, could use mechanisms for an objective oversight of the health of justices.
@sebalacunza