Protesters in Plaza de Mayo, Buenos Aires. Maximiliano Ramos/Demotix. All rights reserved.
Before taking office, Mauricio Macri led the group of politicians who strongly criticized, back in 2013, the judiciary reforms - "to democratize justice" – put forward by Cristina Fernández de Kirchner’s government. The main objection he raised was that they did not conform to the normal dynamics of institutional dialogue in a Republican system, and that they eroded judicial independence. Macri (then Mayor of the City of Buenos Aires) was at the front of several demonstrations against the reforms, which were passed by the Argentine parliament but were ultimately rejected, to a great extent, by the Supreme Court.
In 2015, during the presidential election campaign, Macri’s Republican Proposal (PRO) platform included his commitment to "strengthen the rule of law, strictly respecting the division of powers, the independence of justice and the constitutional principles and guarantees, together with full freedom of expression". Macri pointed out also that the greatest shortcoming of Kirchnerism was its disrespect for the Argentine institutions, which adversely affected the principle of separation of powers. The restoration of the independence of the judiciary was one of his main campaign slogans.
Macri finally won the elections and became president. On his inauguration on December 10, 2015, he told parliament: "Under our government there will be no Macrista judges. Justice and democracy simply do not exist without an independent judiciary. But we must go along with justice in a process to clean it from political vices. Judges cannot be party militants”. Macri declared that his government would rest on the following pillars: the strengthening of the institutions, the separation of powers and the independence of judges.
After taking office
On December, 14, only a few days after his victory in the runoff election, Macri appointed two new judges to the Supreme Court. As he had announced during the campaign, the judicial system was a sector where adjustments were needed: all vacancies on the Supreme Court had to be filled, and judicial independence had to be restored by avoiding the appointment of militant judges.
The Argentine Constitution stipulates that a name list of the candidates to the country’s highest court must be submitted to the Senate, that it must go through a contestation period and a public hearing process, and that it must finally obtain the approval of two thirds of the Senate. This procedure was not followed, however, with the two candidates chosen by Macri, Carlos Rosenkrantz and Horacio Rosatti.
Contrary to his pre- electoral discourse, Macri preferred to appoint them by decree - namely, Decree 83/2015. The legal basis for this decree is Article 99, paragraph 19, of the Constitution: "Vacancies for posts requiring the consent of the Senate which occur during its recess can be filled through appointments by delegation which will expire at the end of the next Legislature." That is, the president chose the judges provisionally. They will only remain in office until November, 30, 2016, at the end of the Congress sessions, without having to go through the approval process in the Senate. This constitutional provision was used only once before in Argentina: in 1852. At that time, Argentina had no national structure as we now know it and the province of Buenos Aires was not a part of the Argentine Confederation. Not surprisingly, Macri’s decree prompted immediate reactions.
On the one hand, Congress will only resume its activity at the beginning of March 2016. Given the importance of the appointments, it would not have been an exceptional event for the executive branch to have convened an extraordinary session. Macri, however, decided not to wait for the opening of Congress, nor to call a special session. In other words, he resolved not to go through the Senate, choosing not to provide legitimacy and stability to the new judges.
On the other hand, the use of decrees “of necessity and urgency” is certainly a constitutional prerogative that the Executive has at its disposal, but its use must be justified by exceptionality – namely, the necessity and urgency of the matter. None of them apply in this case. According to the legal framework for decrees (Law 26.122), a Joint Congressional Standing Committee must be consulted on the validity of the decree and its ruling must be submitted to a plenary session of each House of parliament, which can approve or reject it. The constitutionality of the means used can be questioned in parliament and by the Supreme Court. Macri’s party only controls 35% of the Chamber of Deputies and about 20% of the Senate, and the Bicameral Standing Committee would obviously reflect these proportions.
But one-sidedness is double-edged. The lack of respect for the existing mechanisms for the appointment of judges, cracking an essential pillar of the division of powers in a republican system, prompted strong reactions in several sectors of the political spectrum. There exists a fair degree of consensus among prominent figures that Macri used the decree as a means to circumvene the Senate hearing (where the Peronist opposition has a majority), and thus to secure a Supreme Court composition that can guarantee the "solving" of some of the pressing issues before it (among them, the Media Law). Directly opposed to his pre-election vows, Macri’s management of this issue violates the separation of powers and undermines judicial independence. Clearly, this is an institutional setback, a break of the republican system.
Overall, the decree aroused surprise across the political spectrum. Never in the past 30 years did a president pretend to carry out such a constitutional mutilation by handpicking members of the Supreme Court. The legitimacy of the judges appointed to the Supreme Court comes precisely from their confirmation by the Senate, which is lacking in this case. Several members of the Radical Civic Union (UCR), a member of the ruling coalition, disagreed with Macri’s move. Prestigious lawyer Gil Lavedra (member of the tribunal that sentenced the Argentine military in 1985) drew attention to the error not to convene an extraordinary parliamentary session. Julio Cobos, UCR senator for Mendoza and former Vice President, expressed himself in the same vein. Margarita Stolbizer from the Generation for a National Encounter party (GEN), the PRO party that supported Macri’s presidential campaign, considered the decree a legal and institutional setback.
Likewise, numerous ideologically diverse organizations expressed concern about Macri’s decision. The Civil Association for Equality and Justice (ACIJ), the Association for Civil Rights (ADC), the Center for Legal and Social Studies (CELS), the Citizen Power Foundation Institute of Comparative Criminal Studies and Social Sciences (Inecip) the Environment and Natural Resources Foundation (FARN) and the Union of Users and Consumers, jointly declared that the independence, impartiality and legitimacy of the Court will be seriously affected, asked Rosenkrantz and Rosatti to decline their appointment, and demanded that the government reconsider the controversial decree.
Renowned jurist Daniel Sabsay, opposed to the Kirchnerista sectors, said that the appointments are patently unconstitutional and put forward the following question: “What degree of independence can people who depend on the Executive finger have?" He added that Macri "is creating an ominous precedent for the institutions he promised to improve." At the other end of the ideological spectrum, Raúl Zaffaroni, former Supreme Court judge and current Inter-American Court of Human Rights judge, declared: "This decree determines that the executive branch appoints its own judges, by itself and before itself. I think this is outrageous. This does not affect democracy, it affects the Republic. And a Republic without democracy can be chaos."
For constitutionalist Andrés Gil Domínguez, Macri's decision to appoint judges in this way is "institutionally worse than anything this country has seen since 1983". For his part, Alejandro Carrió, former president of the Association for Civil Rights (ADC) and a constitutionalist himself, said: "I cannot see the urgency to do it this way. The Court can continue to function perfectly as it stands, and if more votes are required, it can call on associate judges". He added that the Constitution considers the possibility of such decrees for "cases of extreme urgency, such as when an ambassador has to be appointed in the midst of a diplomatic row or a general in the midst of a military conflict."
The reactions prompted by the appointment by decree appear to have generated some effect. After meeting with the president of the Supreme Court, Ricardo Lorenzetti, on December, 16, Macri decided to postpone the swearing in of the new judges until February - but not to cancel the decree. At the same time, he will try to advance the deadline for objections and the public hearing, as required by Decree 222/03, which regulates the appointment process to the Court. This is a step intended to defuse criticism by the opposition, society and the ruling coalition itself. With this maneuver, Macri hopes to gain social backing and support, but without the Senate’s approval as required by the Constitution. Thus, far from changing attitude, Decree 83/2015 is still in force and, consequently, so are its effects.
As part of the reactions, over twenty thousand people demonstrated outside the Argentine Congress against Macri’s economic package and the appointment of the Supreme Court judges, and to support the "Media Law". In this context, Lilita Carrió, member of the Civic Coalition (CC) and one of the architects of the coalition that brought Macri to the presidency, tried to mend the error: she announced that she would present a bill detailing the appointment methods for the Supreme Court judges. But the very same day the bill was introduced, on December, 21, federal judge Alejo Ramos Padilla granted an injunction suspending and invalidating Macri’s directive, besides ordering the Supreme Court not to accept the oath of the two new judges. He added that if the two appointed judges were to be approved by the Senate, the injunction will automatically cease to have effect. The judicialisation of the appointments is already under way.
In the last decade, the Argentine judiciary in general and the Supreme Court in particular motivated deep political struggles. The reforms put forward by President Cristina Fernández de Kirchner in 2013, enacted by Parliament, criticized by the opposition led by Mauricio Macri, and partly rejected by the Supreme Court, are a clear demonstration of the country’s existing challenges and institutional dynamics.
With the arrival of the new president, the roles were reversed: Kirchnerism, now in the opposition, contests the controversial process chosen by Macri to unilaterally appoint the new judges. This may result in very tough negotiations in the Senate, where the opposition has the majority needed to confirm them. Unilateralism will need to turn into consensus: in two years time, Supreme Court judge Elena I. Highton de Nolasco will reach the age limit set by the constitution, and there will be a new vacancy on the Court.
Macri's speech in favour of the institutions and judicial independence in the last two years clashes with the unilateral measures he has taken in his first month in office. Far from restoring judicial independence, the unilateral appointment of Supreme Court judges does violence to the institutions, creates an awkward precedent, and places the issue on the table for the duration of his first one-hundred-day honeymoon period. The question is: Why would a president who preached the improvement of democracy and the republic violate them through the use of unconstitutional means and unilateral decisions?
Many a president changes his actions and breaks from his previous speeches when he comes to rule. The building of a strong presidency on the grounds of unilateralism, putting at risk his volatile social and contextual support, has been Macri’s own choice. But one-sidedness does not necessarily mean strength. From what we are seeing in his first month in office, his previous discourse is a long way from his preferences and style of governing. His democratic vocation appears to be just that, a vocation on paper. Today, his republicanism is devoid of any meaningful content.