Proposals to Limit Injunctions and Modify Judiciary Council Undermine Access to Justice
April 24, 2013
This reform would give Argentina’s ruling party an automatic majority on the council that oversees the judiciary, which seriously compromises judicial independence. Elections to select judicial council members should be conducted in a way that ensures they aren’t politicized.
José Miguel Vivanco, Americas director

(Washington, DC) – The Argentine Congress should reject proposals by the Fernández de Kirchner administration to reform the justice system because they would undermine judicial independence, Human Rights Watch said today.

President Cristina Fernández de Kirchner submitted to Congress on April 8, 2013, a series of legislative proposals to reform Argentina’s justice system. The package included a bill to limit individuals’ ability to request injunctions against government acts, and another to modify the composition and selection process for members of the Council of the Judiciary – a body charged with selecting judges and deciding whether to open proceedings for their removal. The Senate has approved both proposals, which are to be debated on April 24 in the Chamber of Deputies.

“This reform would give Argentina’s ruling party an automatic majority on the council that oversees the judiciary, which seriously compromises judicial independence,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Elections to select judicial council members should be conducted in a way that ensures they aren’t politicized.”

One bill would increase the members of the Council of the Judiciary from 13 to 19, adding one lawyer and five representatives from the “academia or scientific field” to the existing body, which is made up of three representatives of judges, two of lawyers, one of the “academia or scientific field,” one of the executive, and six legislators.  Decisions regarding the appointment and removal of judges would be adopted by a simple majority of votes (10 out of 19 members).

The proposal would also require judges, lawyers, and representatives of the “academia or scientific field” to be nominated by political parties and selected by popular vote during presidential elections, starting in 2015.  A first election, if the law is passed on time, would take place in 2013 during legislative elections due in October (under the current system, judges are appointed by the judiciary, lawyers are elected by lawyers, and the representative of the “academia or scientific field” is appointed by a council that groups universities).

Under the proposed norms, whoever wins the presidency of Argentina would immediately have a majority of seats at the council. The president would appoint the executive’s representative, while eight other members – two judges, two lawyers, and four members of the “academia or scientific field” – would come from the party list that wins the majority of votes in the election. In addition, the party with the majority of seats in Congress would choose two senators and two representatives as members of the council, while the largest minority party would appoint one senator and one representative.

Another bill in the package limits the ability of individuals to request courts to issue injunctions to suspend government acts that could undermine basic rights. It establishes that these measures may be granted only for six months in regular cases, which may be extended an additional six months if necessary, and only for three months in abbreviated trials.  

The original proposal stated that these limits would not apply to cases in which the rights to life, health, or food were in danger. This language was improved in the Senate after the Center for Legal and Social Studies, a local organization, pressed for changes to include additional exceptions. Currently the proposal also excludes cases that affect “vulnerable groups” involved in the process, a “dignified and decent living”, or the environment.

Judges would not be able to authorize injunctions that “affect, imposes obstacles, compromises, or distracts from its purpose, or in any way disturbs the State’s resources, or imposes monetary responsibilities to public officials.” This broad language does not grant judges the possibility to weigh the impact that an injunction would have on state resources against the irreparable damage that not adopting such a measure would have on the petitioner, Human Rights Watch said.

“To ensure that injunctions are effective, judges need the flexibility to determine their duration and characteristics,” Vivanco said. “Broad prohibitions and strict timeframes in a country where trials may take years undermine access to justice and a fair hearing for Argentinians.”

The justice reform package also includes some positive measures, such as proposals to appoint administrative personnel and lawyers working in the justice system through open competitions, to increase the transparency of work carried out by courts, and to post online the annual income tax declaration of judges.