S.E. Néstor Carlos Kirchner
President of the Republic of Argentina
Casa Rosada
Balcarce 24
Buenos Aires, Argentina AAB1064

Dear Mr. President,

I write in regard to the bill to restructure and modify the functioning of the Council of the Judiciary, which is currently under discussion in Congress. I understand that the bill, presented by Senator Cristina Fernández, was approved with some amendments in the Senate in late December and currently awaits a vote in the Chamber of Deputies.

A key part of Human Rights Watch’s work is to evaluate the possible consequences of proposed legislation affecting those democratic institutions that underpin the protection and enjoyment of human rights, such as a free press and an independent judiciary.

We recognize the important steps Argentina has taken under your leadership to strengthen the independence of the judiciary and the rule of law. The system now in force for appointments to the Supreme Court, in which nominations by the executive branch are debated in public hearings, and the recent appointment to the Court of prestigious jurists renowned for their independence, have done much to restore public confidence in the judiciary. The energetic measures taken by your government and the legislature to end the long impunity enjoyed by those responsible for the grave violations of human rights committed during the military dictatorship have also helped greatly to consolidate the rule of law in Argentina. As you know, we have often expressed these opinions publicly.

We are, however, concerned about some aspects of the bill to reform the Council of the Judiciary. I understand that the bill’s purpose is to rectify serious deficiencies in the performance of this body. Nevertheless, in tackling this problem, the bill proposes a restructuring of the Council that will seriously undermine the independence of the country’s judiciary as contemplated in the Constitution.

The Council was incorporated into the Constitution of 1994 essentially in order to eliminate undue political interference in the administration of justice, including the nomination and dismissal of judges. For this reason, the composition of the body was carefully balanced between representatives of the legislative and executive branches on the one hand, and those representing the judiciary, the legal profession, and academia on the other.

Article 114 of the Constitution refers specifically to this balance:

    The Council will be composed in such a way as to obtain a balance between the representation of the public bodies elected by popular vote, of judges at each level, and lawyers with a federal license. It will also include other persons from the academic and scientific sphere, in the number and form determined by the law (translation by Human Rights Watch).

Three aspects of the proposed bill affect this balance. First, it alters the relative weighting of the different sectors represented on the Council by reducing the number of members from twenty to thirteen, of which six would be legislators (at present there are eight) and six would be judges, lawyers and academic experts (at present there are eleven). Together with the single member who is appointed by the executive branch, politicians would therefore have a 7-6 majority, while the weight of professional opinion on the new body would be significantly diminished.

Secondly, the bill eliminates all representation on the Council of the political sectors belonging to the second largest opposition party in Congress. Whereas at present the governing party has five representatives (four legislators and one representative of the executive branch) out of a total of twenty members, in the proposed version it would have exactly the same number of representatives, but now out of a total of thirteen members. In other words, if the bill becomes law, the governing party could hold a majority on the Council by gaining only two votes (at present it would need to gain six).

Thirdly, a change in the rule governing the quorum in the Council could allow it to function without any participation at all by the judges, lawyers, or academics. Because the proposed amendment reduces the quorum from twelve to seven members, the six legislators and the representative of the executive branch could hold sessions on their own.

We fully share the concern expressed by the Centre for Legal and Social Studies (CELS), the Association for Civil Rights (ADC), and other Argentine civil society monitors, who contend that, combined with the other proposed reforms, the change of quorum undermines the balance stipulated by the Constitution requiring that no sector should be able to take decisions on its own. Indeed it distorts the very purpose that inspired the creation of the Council, i.e. to ensure balance and moderation in decision-making affecting the judiciary.

Some of these changes—the reduction of the number of seats on the Council, the increased weighting of its congressional members, or the reduced quorum—are not necessarily of concern if considered individually. The problem lies in the combined effect of these measures, which shift power on the Council significantly toward the governing party and the executive branch. While the bill strengthens the power on the Council of those elected by popular vote, it deprives small parties of any voice at all. By reducing the quorum, it would effectively remove any countervailing presence on the Council of judicial, legal and academic opinion. In other words, the combined effect is to create a more politicized system without pluralism or effective independent checks.

There is a great variety of institutional models throughout Latin America establishing independent councils charged with the administration of the courts. We are fully aware that international principles and norms on the independence of the judiciary do not specify what mechanisms should be adopted for the selection and dismissal of judges, beyond requiring that “any method of judicial selection shall safeguard against judicial appointments for improper motives” (Principle 10 of the United Nations Basic Principles on the Independence of the Judiciary).

Nevertheless, there is a clear trend toward the creation of plural bodies with a significant and well-balanced representation of the judicial, legal, and academic sectors, of which the Argentine law is an example. Several years ago, the Council of Europe embraced the principle that decisions affecting judicial careers should be the responsibility of an independent body on which judges are significantly represented. According to paragraph 1.3 of the European Charter on the Statute for Judges (1998), “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”

We do not, of course, object to the presence of government officials and members of Congress on the Council. Indeed, as elected representatives, legislators enjoy legitimacy to participate in decisions affecting the courts and the appointment and removal of judges. However, the Council is not bound under the Constitution by the same rules of representation as the legislature. The lawyers, judges, and academics who participate in the Council acquire their legitimacy from their professional standing, technical competence, and reputation for fairness and impartiality. It is this mixed composition that helps to ensure that the political criteria that invariably govern policy in the judicial area, as in any other, are tempered by professional and legal considerations. Such a balance is of the greatest importance when it comes to judicial nominations and dismissals.

The checks and balances introduced in the Constitution to prevent a politicization of the judiciary should be scrupulously respected, not just to prevent undue political interference, but to reinforce public confidence in the impartiality and independence of the judiciary. Indeed, the European Court of Human Rights has affirmed on several occasions that judicial independence is not just a matter of the fulfillment of objective conditions but also involves an unquestioned appearance of independence.

We understand that there are valid reasons that justify concern about improving the performance of the Council of the Judiciary. Unfortunately, however, the measures proposed to address this issue are likely to cause greater harm than good. If adopted, they would jeopardize the constitutional principles on which the council is based and seriously undermine the progress that Argentina has made under this government in consolidating judicial independence and the rule of law.

For these reasons, I would respectfully urge you to seek amendments to this bill so that its provisions are fully consistent with the constitutional requirements of balance and pluralism that are the essence of the Council; and to veto it in the event that Congress approves it in its present version.

Yours sincerely,

José Miguel Vivanco