Judicial Reform as Political Insurance: Argentina, Peru, and Mexico in the 1990s

Chapter Two: Judicial Reform in Argentina in the 1990s

Chapter Two Judicial Reform in Argentina in the 1990s Argentina’s tumultuous twentieth-century political history has been marked by a weak and subservient judiciary that has traditionally served to uphold laws passed by illegitimate civil and military governments alike. Beset by chronic instability and repeated replacement, the Argentine Supreme Court has been unable to develop the institutional independence or the political will required to challenge the prevailing leadership.1 “Indeed , almost every new government has had a judiciary of its own choice. For example, during the military regimes, one of the first acts was to assault judicial power (Stotzky and Nino 1993, 12). In fact, rather than serve as a check on authority, the Supreme Court acquiesced in the expansion of executive power (Nino 1993, 326–27). Given the historic impotence of the Argentine judiciary, when Argentina returned to democratic rule in 1983 there existed little expectation that the country’s Supreme Court would emerge as a subject of keen academic interest. Nor was there any reason to believe that the judicial apparatus would take center stage in the political struggle over the restructuring of the country’s political institutions . Yet in the last decade the Argentine judiciary became the focus of much scholarly literature examining judicial independence and behavior (Helmke 2002; Iaryczower, Spiller, and Tomassi 2002; and Bill-Chavez 2003).2 Furthermore, control of the judicial branch emerged as a key bargaining chip in the rewriting of the Argentine constitution. More specifically, Argentina’s 1994 judicial reform, included as part of a larger package of constitutional reforms, was a negotiated deal between the country’s two most important political parties, the Peronists 39 40 Judicial Reform as Political Insurance and the Radicals. In exchange for the right to re-election, Argentina’s Peronist president Carlos Menem agreed to Radical Party demands to swap the “ownership” of the Supreme Court (which Menem had packed four years earlier) and to establish a national judicial council to increase the independence of lower-level federal judges. However, after Menem’s successful re-election bid in 1995, the president failed to recompose the Supreme Court and used his control of Congress to delay the creation of the council. It was only when it appeared that the Peronists would not retain control of the presidency in 1999 that the president finally relinquished control over the judicial branch. In the Argentine case, I argue that while the ruling Peronist Party could be induced in 1994 to initiate reforms, the Peronists then proved unwilling to implement these changes until they believed that they were likely to lose their position of political power. The first section of this chapter discusses the Argentine judiciary in the decade following the 1983 return to civilian rule. The next section describes the Radical-Peronist political trades that provided the foundation for Argentina’s 1994 constitutional reform. The next two sections detail the initiation and implementation phases of Argentina’s reform, respectively . The final section uses my argument to explain Argentina’s experience with judicial reform. The Argentine Judiciary, 1983–1994 The Return to Democracy and Judicial Independence, 1983–1989 In 1983, after seven years of repressive military rule, Argentina returned to democracy with free and fair elections. While Argentina’s political history has long been shaped by the alternation of civil and military regimes, the juntas that governed the country between 1976 and 1983 had been exceptionally brutal, with the military responsible for the “disappearance” of an estimated thirty thousand people, as well as numerous acts of torture , kidnapping, and murder. Argentina’s new president, Raul Alfonsín of the Radical Party, was a human rights lawyer who campaigned on a platform committed to democratization and the search for justice, two is- Judicial Reform in Argentina in the 1990s 41 sues that resounded strongly with the Argentine public. Argentina’s newly elected leadership was particularly concerned that individual rights be protected under the civilian government and that former military leaders be held accountable for the systematic violation of human rights committed under their rule. Hence, just three days after coming to office, Alfonsín declared that legal action would be taken against military officials for the massive human rights violations committed during their rule. He immediately initiated legislation to nullify the “Self-Amnesty Law” decreed by the junta prior to yielding power. The law pardoned all acts of military violence between 1976 and 1983. Alfonsín’s actions enjoyed...