—Andrés del Río, Federal Fluminense University (UFF), Brazil
During the presidential election campaign of 2015, Mauricio Macri, leader of the then-opposition Republican Proposal Party (PRO), included in his platform 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.” His focus on these principles was aimed at part in strengthening the independence of the Argentina Supreme Court, which has long been seen as a politicized institution.
Macri won the elections and became president. At 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 institutions, the separation of powers and the independence of judges.
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 partisan judges.
The Argentine Constitution stipulates that the president must send nominations for the country’s highest court to the Senate. These nominees then must go through a public hearing process, and approval requires a two-thirds vote 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 the promulgation of a decree – namely, Decree 83/2015. The legal basis for this decree is a recess appointment clause found in 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 appointed the judges provisionally. They will only remain in office until November, 30, 2016 (the end of the current congressional session), unless they are meanwhile approved by the Senate. This constitutional provision has been used only once before in Argentina, in 1852. At that time, Argentina had no national structure as we now know it. Not surprisingly, Macri’s decree prompted an immediate outcry.
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 chose to bypass the Senate, thus foregoing a chance to provide legitimacy and stability to the new judges.
The use of decrees “of necessity and urgency” is a constitutional prerogative of the executive, but they must be justified by exceptionality – namely, the necessity and urgency of the matter. These criteria do not apply to this case. According to the legal framework for decrees (Law 26.122), a Joint Congressional Standing Committee must be consulted on the validity of a 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 those proportions.
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 circumvent the Senate (where the Peronist opposition has a majority), and thus to secure a more favorable composition of the Supreme Court for current issues.
The 26.522 Law of Audiovisual Communication Services, popularly known as the “Media Law”, is one of these major issues. The law establishes rules to govern the operation and distribution of licenses for radio and television in Argentina. The multimedia group Clarin was the biggest loser with this law, radicalizing its stance against the prior Kirchner government. In December, Macri changed the law by decree, benefiting Clarin Group and creating unrest in the opposition and society. Because of the steps of the new government, an ongoing process of litigation involving the law became more complex. Macri’s management of this issue thus threatens the separation of powers and undermines judicial independence on important issues.
The hostile reactions to 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 has stated that he will comply with procedures for public comment and hearing. 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 still without the Senate’s approval as required by the Constitution. Decree 83/2015 is still in force and, consequently, so are its effects.
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.” 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 would automatically cease to have effect. The judicial order is therefore pointing back towards the political process, where hard bargaining is underway.
Due to the controversy involving the decrees, Macri finally sent his list of the two candidates to the Senate on February 1. The bargaining process might end with agreement that the two new justices can be appointed, but at the price of creating two additional vacancies, which would expand the total size of the court to seven members. Thus, the two official candidates would be approved by the Senate in exchange for the appointment of two judges from the opposition. Whether all of this maneuvering will actually strengthen the independence of the Supreme Court is of course an open question.
Suggested citation: Andrés del Río, President Macri and Judicial Independence on the Argentine Supreme Court, Int’l J. Const. L. Blog, Feb. 5, 2016, at: http://www.iconnectblog.com/2016/02/president-macri-and-judicial-independence-on-the-argentine-supreme-court