On Monday, Argentina’s President Mauricio Macri filled two vacancies on the Supreme Court (one open since January 2015), arguing that missing 40 percent of its members made it difficult for the five-member body to operate. The court – which has in recent years been key in protecting and upholding basic rights in the country – adopts decisions by a majority of its members, so any ruling must have the approval of at least three justices. Without these appointments, the positions would remain open at least until March 2016, when the Senate resumes.
However, the manner of the appointments has stirred controversy in Argentina. Although there is a general consensus that both candidates – Carlos Rosenkrantz, both an academic and a practitioner, and Horacio Rosatti, a former justice minister – have the qualifications required for the job, the appointments have not been approved by the Senate, although the constitution requires such approval for permanent Supreme Court appointments. The appointments are only temporary, giving the justices a different security of tenure than their three permanent colleagues. Also, the selection process, which was set out in a previous decree adopted by former President Néstor Kirchner in 2003 and required input from civil society, was not followed.
Macri’s decree, under which the new justices were appointed, cites a constitutional provision that allows the president to “fill employment vacancies that require Senate approval” during a congressional recess, and states that the appointments are only valid until the end of the following legislature – in this case, until the end of 2016. Some jurists publicly questioned whether the appointments were lawfully made under this provision, because they challenge the interpretation of a Supreme Court vacancy as an “employment” one.
The justices are supposed to take office in February, and their appointments could later become permanent if they are eventually ratified by the Senate.
Argentina is party to human rights treaties – including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights – that require it to safeguard the independence and impartiality of its judiciary. This extends to perception as well as reality, and that is precisely why government authorities should avoid measures that suggest political interference with the judiciary.
Argentina’s system already provides that Supreme Court appointments be subject to procedures that are transparent and include Senate and citizen participation. It would be better for the judiciary if they were followed to avoid any shadow of doubt that would be cast over the legitimacy of the justices’ work at the Supreme Court.