CRISTINA TACKLES JUDICIAL REFORM: TRIAL BALLOON

C O N F I D E N T I A L BUENOS AIRES 002569

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/14/2016
TAGS: PGOV PREL AR
SUBJECT: CRISTINA TACKLES JUDICIAL REFORM: TRIAL BALLOON
FOR 2007 PRESIDENTIAL BID?

REF: 1. BUENOS AIRES 2485 2. BUENOS AIRES 2451 3.
BUENOS AIRES 452

Classified By: AMBASSADOR E. ANTHONY WAYNE FOR REASONS 1.4 (B) AND (D)


1. (C) Summary. In what many view as a trial balloon for
Cristina Fernandez de Kirchner's bid for the presidency in
2007, the Senator and First Lady introduced a bill on
November 9 that would gradually reduce the number of justices
on the Argentine Supreme Court from nine to five. The seven
justices currently on the bench will remain in place until
two seats are vacated through retirement, death, or
impeachment. Legal experts, leading editorialists, and
several members of the Supreme Court have come out in public
support of the bill, asserting that it would restore the
Court's credibility and judicial independence. Others noted
that the measure would build on Kirchner's earlier efforts to
strengthen the judicial system by improving transparency in
the nomination process. End Summary.


2. (U) On November 9, Senator and First Lady Cristina
Fernandez de Kirchner introduced draft legislation that would
gradually reduce the number of justices on the Argentine
Supreme Court from nine to five. The seven justices
currently on the bench will remain in place until two seats
are vacated through retirement, death, or impeachment. The
legislation would also reduce the number of justices needed
to obtain a majority opinion from five to four until the
court's size is reduced to five justices, when the number of
justices needed to obtain a majority opinion will be reduced
to three.


3. (U) Legal experts and leading editorialists support the
bill, asserting that it would restore the Court's credibility
and judicial independence as well as improve the Court's
efficiency in reviewing cases. Others noted that the measure
would build on Kirchner's earlier efforts to strengthen the
judicial system, when he issued a decree that required the
Executive Branch to present the names of candidates for the
Supreme Court for public consideration. That decree further
required that the Ministry of Justice publish the curriculum
of the nominee on its website so that the media, NGOs,
professional law associations, academia, human rights groups,
and the public in general could debate the nominee's
qualifications and merits. After a review period of three
months, the President can then choose to present the nominee
to the Argentine Senate for confirmation.


4. (U) Opposition figures, ex-Minister of Economy Roberto
Lavagna and Propuesta Nacional (PRO) leader Mauricio Macri,
however, have declined to comment on the measure. In the
days leading up to the bill's announcement, two members of
the Supreme Court, including the Court's President-designate
Ricardo Lorenzetti publicly expressed their preference for
reducing the Court from nine to seven justices. Since the
unveiling of the new bill, however, Lorenzetti has come out
in support of a five-member Supreme Court, stating that it
helps to rebuild the judicial system's institutional
integrity.


5. (SBU) One of the bill's few critics, PRO Senator Jorge
Vanossi, does not believe the bill addresses fundamental
problems in the Supreme Court's structure; including whether
the President of the Supreme Court should be elected by the
Court's members as it is now, or named by the President of
the Republic; the need to limit cases that the Supreme Court
hears to those dealing with issues of constitutionality; and
create additional higher-level Appellate Courts that would
serve as the court of last resort in commercial, civil,
criminal, and labor matters in order to reduce the Supreme
Court's caseload. Despite Vanossi's criticism of the bill,
he does not oppose reducing the number of justices on the
Supreme Court to five.


6. (C) For the majority of Argentina's history, the Supreme
Court has comprised of five justices; however, the Court's
size has fluctuated between five and nine, particularly in
recent history. In the 1990s, then-President Carlos Menem
added four new justices to the Supreme Court, bringing the
total to nine. This, plus the replacement of one of the
pre-existing justices, enabled Menem to pack the Supreme
Court and create an "automatic majority" that would
consistently vote in favor of his executive decrees despite
dubious constitutionality. Since Nestor Kirchner became
President in 2003, all five members of this "automatic
majority" have been removed or forced to resign. The
voluntary retirement of another justice meant that Kirchner
had the opportunity to name six new justices to the Supreme
Court. However, he only named four. Analysts speculate that
Kirchner did not fill the remaining two vacancies to avoid
public perceptions that he, too, was packing the court,
especially after his efforts to reform the Council of
Magistrates in March met considerable public opposition,
despite its eventual passage by Argentina's Congress.


7. (C) Comment: In the wake of the Misiones referendum on
October 29, Kirchner seems to have drawn the lesson that the
Argentine public will not tolerate any moves that would
further undermine Argentina's already weak democratic
institutions. The proposed judicial reform seems to be
designed to answer the public's demands for stronger
democratic institutions and quell accusations that Kirchner
is trying to manipulate the judicial system. In addition,
some believe that the Kirchners are using the bill to test
the waters for a potential bid by Cristina Kirchner for the
Presidency in 2007. As one leading editorialist noted,
"Historically, Argentine society has tired of their
presidents in the fifth or sixth year of their
administration." As the Kirchners look to maintain power
beyond 2007, if Cristina can demonstrate her ability to win
public support for "proyecto K", it just may be the First
Lady we see leading the Peronist ticket in October 2007.
WAYNE